Equity Stirring: The Story of Justice Beyond Law 9781474200646, 9781841138466

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JOBNAME: Watt PAGE: 5 SESS: 7 OUTPUT: Mon Jun 29 10:45:03 2009

To my grandparents, John and Lil Wright, With love.

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Author’s Preface

Before I begin, I will take this opportunity to say a few words about my choice of titles and topics. I start with titles, because one of the aims of this book is to explore the potential of a cultural discourse, based on equity, to resist a culture of entitlement, based on rights. The inscription of title and entitlement by a process of formal abstraction is one of the founding exercises of the law, but the process is fundamentally erroneous and calls for equity’s correction, since a mere title can never express the whole truth. I chose the title Equity Stirring for a number of reasons which will become apparent throughout the course of the book, but mainly because it expresses equity’s active and unsettling influence over the conventional and complacent. To the extent that this book is a book about resistance to entitlement, it might be thought that it needs no title – or even that it needs to have no title. That would be to misunderstand the sort of resistance that equity offers. Equity is not revolutionary – it does not seek to do away with titles and other formal abstractions. On the contrary, equity exists only because titles and other formal abstractions are necessary and are necessarily flawed. Equity does not ignore the track set out by abstraction and the route established by routine – it tries to follow the formal path as far as possible, but it will depart in those places where the path deviates too far from the natural terrain and the topography of what is humane. Equity is not a sentient being, however potently we personify it, but it is a human art to judge when and to what extent it is desirable and possible to depart from the right road without leaving it utterly. So the sub-title to this book, The Story of Justice Beyond Law, indicates that equity engages with the regular law, but with a concern for something more than the regular law. The sub-title also indicates that this is the study of a story; it is a cultural, linguistic and literary history of an ancient and universal feature of human engagement with regulation and routine. It is not an empirical or doctrinal analysis (although I hope to add something to our doctrinal understanding of legal equity, and to say something about the limits of the empirical and doctrinal in the field of law); it is, rather, a study of the idea of equity across many fields of the arts and humanities, and a study of the common law idea of equity from the perspective of the arts and humanities. It is, especially, a study of

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Author’s Preface equity by the lights of the literary arts, and in that sense this book belongs to a growing body of work devoted to the study of ‘law and literature’, within the broader field of ‘law and humanities’. I will now outline the topics addressed in the chapters of the book. The book has seven chapters. The first, entitled ‘Excursion’, encourages us to step outside our usual courses. It is concerned with education in the true etymological sense of the word, in that it aims to conduct readers out of their familiar disciplinary domains and into a discourse between the disciplines. The need for engagement between the humanities’ disciplines is especially pressing in legal scholarship and legal practice, since the law, according to its origins and obligations, should be a prime locus for humanities’ scholarship and the humane arts but is nowadays to a great extent alienated from them. I demonstrate that there is an interdisciplinary consensus regarding the virtue of equity and that equity can be seen, as Aristotle saw it, as a feature of good character. I identify various qualities of equity to which we may aspire – not in the pursuit of any moral ideal – but in order to avoid the harm inherent in the worst extremes of formalism, legalism, regulation and unthinking routine. In summary, then, the opening chapter encourages us to read beyond the literature of the law and to read beyond the letter of the law. Chapter two, entitled ‘In Chancery’, explains the historical processes by which the English Court of Chancery came into being, and how the concept of equity – and especially Aristotelian and Christian versions of the concept – came to be confined within it. In this chapter we discover that chancery is synonymous with incarceration as a matter of historical fact, as a matter of etymology and as a matter of concern in the literary works of authors including Carlyle and Dickens – it is through these discoveries that this chapter offers a new explanation for Dickens’ choice of Jarndyce and Jarndyce to be the name of the terrible chancery case in his novel Bleak House. Another incidental discovery is a possible connection between Shakespeare’s Measure for Measure and the order made in 1616 by which King James I confirmed the jurisdictional supremacy of the Court of Chancery over the courts of common law. The other major theme of chapter two, in addition to the theme of chancery and incarceration, is the theme of chancery and violence. I do not say so in the text, but this theme leads into the title of chapter three, which is ‘Chancery Script’ – the formal connection lying in the fact that the chancery was originally a department of scribes and to inscribe is literally to scar. The substantial object of chapter three is to survey the technical language developed in the Court of Chancery – drawing out the various lines through which the legal idea of equity has been expressed and within which it has been contained and constrained – with a view to ascertaining whether the language of equity developed in chancery still expresses any of the virtues inherent in the original. I conclude that the essential virtue of equity, which is to moderate the worst excesses of legalism and formality, can still be seen within the maxims, doctrines, remedies and proprietary creatures of the Court of Chancery. The middle chapter, chapter four, is the conceptual heart of the study because it argues that equity’s operation in relation to general law parallels the operation of viii

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Author’s Preface metaphor and other poetic tropes in relation to prose. It argues, in short, that different aspects of law correspond to different aspects of literature. This chapter, which is entitled ‘Figuring Equity’, argues that to understand or ‘figure’ equity, one has to resort to figurative language because equity functions as metaphor functions. Metaphor expresses abstractions in terms that are concrete and tangible, and equity humanises legal abstractions by connecting them to the matter at hand. Chapter four proceeds to assess the relative merits of the many metaphors that are used to describe equity’s operation in law; casting doubt on some of the most popular metaphors, including the metaphor of the scales, and offering more nuanced, including some new, metaphors in their place. That chapter concludes with a brief introduction to the personification trope, which leads directly to chapter five, ‘The Equity of Esther Summerson’. In this chapter, I argue that the heroine of Dickens’ Bleak House is the perfect literary personification of equity, because she moderates the contrary extremes of stasis on the one side and displacement and destitution on the other – stirring those who are still and settling those who are disturbed. (‘Stasis’ is a word with a wide range of meanings, some of which conflict, but I use it throughout this book to denote a stubbornly unmoving state.) Dickens and Shakespeare are the writers most often referred to throughout this study, and chapter five, with its focus on Dickens’ Bleak House, leads to chapter six, on ‘Shakespeare’s Equity’. I am aware that there might appear to be a certain irony in the fact that my search for the virtue of departing from norms has taken me to two of the most enduringly popular writers in the mainstream literary canon. There are a number of reasons for the choice. The first is the contingency of my own taste – these happen to be writers whose work I enjoy and know quite well and desire to know better. The second is that I have written this book for an interdisciplinary readership, so it makes some sense to meet on common ground which is familiar enough and large enough to attract and accommodate readers approaching the book from a diversity of disciplinary backgrounds. The third reason is that the works of Dickens and Shakespeare engage deeply with the law and with the problems inherent in legal systems and strict legalism. This may be down to the fact that they both had significant personal encounters with the law and lawyers and the pains of litigation. Dickens even worked as a lawyer’s clerk and Shakespeare worked with a law-writer and might even have worked as one himself. However, it is not their technical familiarity with the law that makes them so valuable to the present study. It is the fact that Dickens produced equitable characters like Esther Summerson who do not judge the law harshly, but nudge it from harm’s way; and it is the fact that Shakespeare’s works – especially his dramatic works – are in various senses equitable. Like all drama, Shakespeare’s plays offer a scripted text to be adapted to particular performance by humane arts of interpretation – which mirrors the equitable performance of the texts of law. Like the best drama, they achieve a deep connection with the audience through the portrayal of fundamental tensions in human nature and the schemes of social life and they maintain the drama by refusing to pass definitive judgment on the conflicts that ix

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Author’s Preface are portrayed. To maintain tension between extremes is equity’s constant activity – it is, to use Shakespeare’s own language, ‘equity stirring’. The final chapter carries the title ‘Pretence of Equity’. It summarises the story of equity as it is told throughout the book and considers how the story might extend forward, beyond the book, and what part we might have in telling it. The title to that final chapter is also an acknowledgement that there is inevitably an element of pretence in every work of interdisciplinary scholarship. I put this book forward as an interdisciplinary engagement with equity, but I do not pretend to know as much about literary scholarship, or classics, or theatre, or any of the other disciplines I appeal to, as I profess to know about the law. To use lawyer’s language (or is it liturgical language), I hope that I will be forgiven my trespasses into neighbouring fields of scholarship. One respect in which my alien status might be apparent to literary scholars is in my willingness to refer to the writing of literary critics and commentators who might nowadays be considered old-fashioned, just as I have also favoured many legal theorists who were also in their prime around the limits of living memory. The fact is that equity is a truly archetypal idea, having its earliest expression in the written remnants of the oral tradition of ancient civilisations, and some of the clearest and strongest statements on equity have been made by scholars whose methods and attitudes have for other intents and purposes fallen out of favour. Where I have found my sense of equity expressed clearly by other writers I have been happy to approve that aspect of their work without judging their work as a whole and without judging them personally. I hope that this is an equitable way to read the writers of the past. It remains to thank my wife Emma and my sons Jamie and Michael for bearing with me – again; and to offer my thanks to the very many colleagues and students who have encouraged me in the study of law and humanities and joined me in it. For their general enthusiasm and their willingness to make an excursion from the typical course of a law degree, my first thanks must go to the adventurous students who opt for my course on law and literature. This is also a place to express ongoing appreciation for Paul Raffield, who is my co-worker towards a more humane legal education as well as being my fellow general editor of the journal Law and Humanities. That journal, like this book, is published by Hart Publishing and I owe a great debt of gratitude to the hard work and vision of Richard Hart and his team, and to the anonymous reviewers of this book. It is Richard’s ability to see beyond the routines of legal scholarship that has established the excellent reputation of Hart Publishing and long may it thrive. Daniela Carpi is another friend and colleague who deserves special thanks. Many of the ideas appearing in this book were developed in papers that I first delivered at conferences hosted by her in the beautiful city of Verona. I am grateful to the contributors to those conferences who have helped refine my own thinking, many of whom are referred to throughout this book. I am also grateful to the organisers of, and contributors to, a conference held in 2007 at the University of x

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Author’s Preface Cambridge under the title ‘Beyond Reasonable Doubt’. Elements of the concluding chapter of this book were first presented there. Particular thanks must go to those who have been kind enough to read over one or more of the chapters of this book at various stages of its development. They have, without exception, removed errors and added new insights. I am grateful to James Harrison for reading chapters one and three, and to Panu Minkkinen for his observations on chapter one; I am grateful to John Snape for reading chapter three, to Simon Gathercole for his observations on chapter four, to Nicola Lacey and Danny Priel for reading chapter five and to Susan Brock for reading chapter six. Last but in no sense least; I am grateful to James Boyd White. Not only because his published writing has exerted a great influence on my own work, but because he has been very generous in providing detailed observations on the long first chapter and after reading the book as a whole has been equally generous in commending it to the reader. Gary Watt, Spring 2009

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1 Excursion I have purposely dwelt upon the romantic side of familiar things. Charles Dickens

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HESE WORDS FROM the preface to the first edition of Bleak House are a fitting preface to the present study on the idea of equity in law and literature. My aim in writing this book is to reassert equity’s power to provide an ethic for imagining better law and better life. My method is to disclose the story – the roman – of justice beyond the familiar texts of law. One feature of this method is to read the texts of law alongside a wide variety of other literary texts – the inquiry is in that sense con-textual. Another, and interrelated, feature is to read legal texts in a wider variety of ways – the inquiry is in that sense a reading of the sub-text of law. Sir Frederick Pollock wrote that ‘English-speaking lawyers…have specialised the name of Equity’.1 It is typical for legal textbooks on the law of equity to acknowledge the diverse ways in which the word ‘equity’ is used and then to focus on the legal sense of the word to the exclusion of all others.2 There may be a professional responsibility on textbook writers to do just that. If so, there is a counterpart responsibility to read the specialist language of the law imaginatively and to read what non-lawyers have said of equity with an open mind. If one accepts that there is an inevitable disjunction between general law and more perfect justice, it follows that one should continually stir up what the law sets down. Lawyers tend to regard the idea of equity as if it were a door having one side within the law and one side without. They prefer to keep the door closed and to see only their side of it. I will argue that the legal language of equity is not so perfectly framed as to enable the door to be shut tight, and that this is a

1 F Pollock, Introduction and Notes to Sir Henry Maine’s ‘Ancient Law’ (London, John Murray, 1908) 14–15. 2 The classic text, Snell’s Principles of Equity does this. In at least one previous edition it opened with the line: ‘The term equity is used in various senses’ (HG Rivington and AC Fountaine (eds), 20th edn (London, Sweet and Maxwell, 1929).

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Excursion good thing. The essentially fictional nature of legal language keeps the door ajar to stories of equity from beyond the law.3 It is normally unnecessary to reach beyond the letter of the law, but the need to do so is sometimes clear. The need is most obvious where harm is caused in a particular case through a party’s strict insistence on a legal rule, where such harm would not have occurred but for the existence of the legal rule. Suppose a landowner orally promised to appoint a vulnerable servant to be heir to the land and, as a result of the promise, the landowner received unpaid labour from the servant for many years. The parties’ informal agreement has no status in law because the general rules state that interests in land must be transferred by formal documentation, but the landowner ought surely to be required to honour the agreement. In these circumstances, the lack of legal form must not be permitted to defeat the promise. Every system of justice has a responsibility to supervise the operation in relation to particular people in particular cases of its general and necessarily imperfect scheme and to intervene to prevent harm caused by routine insistence on legal form and legal norms. This is the intervention of equity. Maine suggested that equity claims to override the general law on the ‘strength of an intrinsic ethical superiority’,4 but ‘superiority’ is the wrong word; ‘supervisory’ is better. Equity is not free-standing; it has no existence apart from its relationship to a general state, such as the general state of the law. Since it is dependent, it cannot claim to be superior; but it can claim to provide a necessary contribution to better justice. To correct the errors of the general scheme where they are apparent will not make the system ideal, but it will at least improve it by removing the worst and most blatant harms arising from the inadequacy of the law’s generality. Erik Rabkin sees a parallel to this pragmatic equitable dynamic in the fairy tale of The Sleeping Beauty.5 According to Perrault’s version, a wicked fairy attended the christening of the Princess Aurora and bestowed a curse instead of a gift. She promised that Aurora would one day pierce her hand with a spindle and on that day ‘surely die’.6 After this, the good fairy godmother Hippolyta conferred her christening gift on the child. She did not have the power ‘wholly to undo’ the wicked fairy’s prophecy, but she could at least commute the sentence of death to one of sleep. Equity cannot remove the force of the law, but it can moderate its impact. Equity does not break rules, but merely bends them.7

3 On the fiction of legal language, see generally, O Barfield, ‘Poetic Diction and Legal Fiction’ (the essay has been reproduced in several collections, including GB Tennyson (ed), A Barfield Reader: Selections from the Writings of Owen Barfield (Wesleyan University Press, 1999). Particular aspects of Barfield’s essay are considered in ch 4 at 138). 4 Henry S Maine Ancient Law (London, John Murray, 1861) ch 3; (London, Dent ‘Everyman’ edn, 1917) 43. 5 E Rabkin, ‘Fantasies of Equity’ in D Carpi (ed), Practising Equity, Addressing Law: Equity in Law and Literature (Heidelberg, Universitätsverlag Winter, 2008) 71−88, 79. 6 The Sleeping Beauty and Other Fairy Tales from the Old French retold by Sir Arthur QuillerCouch (London, Hodder & Stoughton, 1912) (reprinted London, Folio Society, 1998) 6. 7 In ch 3, we will consider a number of examples of this dynamic in the English Court of Chancery.

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Excursion If a general rule causes harm in the generality of cases, that is not a problem calling for an equitable solution, but a problem calling for more radical law reform, by judges if possible or by parliament if necessary. The present study is an examination of this pragmatic idea of moderating equity as it emerges across a wide range of literary disciplines; including disciplines which, like law, perform text. It is, in a sense, a peregrination – a search for the idea through many fields. The hope is to correct formalistic errors in the way that law is read and, more aspirationally but no less important, to address the widespread error of reading life in terms of law; which we commit, for instance, when we unjustly and unreasonably insist on our strict legal rights and entitlements and also when we lead (and read) life according to unthinking routines. Hart distinguished rules of habitual behaviour – every week we go to the cinema ‘as a rule’ – from rules which we are compelled to obey – ‘there is a rule that a man must bare his head in church’.8 The equity that I have in mind transcends Hart’s distinction because it corrects the practical harm which flows from the error of general routine whether compliance with the routine is compelled or not. There is force at work in both cases, whether it is a force of public censure or a force of habit. I have in mind what James Boyd White refers to as ‘the Empire of Force’9 – which is the dominance of unthinking routines and norms. We see this force at work in habits, cliché, generalities, stereotypes, lazy labels and rigid routines. It is also to be found in the natural temptation to judge by external appearances. It is also found in errors of formalism and normalism (which I am aware is not normally a word). I have already made the formalistic error of assuming that there is such a thing as ‘a lawyer’. We should hope that there is in fact nobody for whom ‘lawyer’ is anything but a temporary and partial label. ‘Lawyers, I suppose, were children once’, said Charles Lamb;10 and it is also true that those who were lawyers once may be lawyers no more. Even Shakespeare and Dickens, the two writers who will contribute most to our literary appreciation of equity, had backgrounds that were in various senses ‘legal’, as we shall see in future chapters.11 It is only in fiction, one hopes, that one finds characters, like Dickens’ Mr Tulkinghorn, who are all law and all routine (we are told that even when he opens a door he does so ‘exactly as he would have done yesterday, or as he would have done ten years ago’)12 (41) and yet it is only in fiction, one suspects, that one finds characters who are utterly unconcerned with law and 8

HLA Hart, The Concept of Law (Oxford, Clarendon Press, 1961) 10. JB White, Living Speech: Resisting the Empire of Force (Princeton, Princeton University Press, 2006), reviewed by J Etxabe (2008) 2(1) Law and Humanities 138–46. 10 C Lamb, The Complete Works and Letters of Charles Lamb, The Essays of Elia, The Old Benchers of the Inner Temple (New York, Random House, 1935) 79–80. This quotation is the epigraph to Harper Lee’s To Kill a Mockingbird (Philadelphia, JB Lippincott & Co, 1960). 11 The Dickens’ family had a very mixed experience of law. Charles’ father was imprisoned for debt and one of his sons, Henry Fielding Dickens, was appointed Queen’s Counsel. 12 I have adopted the practice of placing the chapter number immediately after the quotation in the main body of the text. This will be my practice in all remaining chapters. All quotations are taken from Charles Dickens, Bleak House (1852−3) (Harmondsworth, Penguin English Classics, 1971). 9

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Excursion utterly free from routine. The present study looks to the example of characters (real and fictional) who live, as we all live, somewhere between the extremes of utter legality and utter liberality. These are the characters who tell the story of justice beyond law. It is they who keep equity stirring.

Equitable Reading … the spectator or reader, if he or she reads well, is already prepared for equity and, in turn, for mercy. Martha C Nussbaum13

To read well means to read with an appropriate ethic, or, as it has been termed, an appropriate ‘poethic’.14 In the search for justice beyond the letter of the law the most appropriate ethic of reading is the equitable ethic. To read equitably is to read in the Aristotelian tradition of epieikeia, which Nussbaum calls a ‘gentle art of particular perception’ and ‘a temper of mind’ consistent with ‘understanding the whole story’.15 It is an ethic consistent with the hermeneutical tradition of the interpres aequus, the ‘equitable interpreter’ praised by Erasmus.16 The equitable temper of mind does not deny the need for temporary and partial labels like ‘lawyer’, but undertakes responsibility to read beyond them. Michel de Montaigne had inscribed into the rafters of his library certain mottos translated from the Skeptic philosophy of Sextus Empiricus, including ‘I determine on nothing’ and ‘I do not comprehend’ and ‘I suspend judgment’.17 DH Lawrence wrote something similar when he wrote that ‘[a]nger is just, and pity is just, but judgment is never just’.18 For Montaigne, sceptism did not close inquiry, but was a spur to further and better examination. He was a former lawyer who has been called ‘one of the greatest, and most human, of the humanists’19 and he indicates a path for every lawyer to follow. Lawyers might discern the start of the path to equitable reading in such juridical notions as ‘the equity of a statute’20 and the ‘benevolent construction’21 of documents. The tradition of equitable reading is in fact as long-established in 13

MC Nussbaum, ‘Equity and Mercy’ (Spring 1993) 22(2) Philosophy and Public Affairs 83–125 at

105. 14 RH Weisberg, Poethics: And Other Strategies of Law and Literature (New York, Columbia University Press, 1992). 15 ‘Equity and Mercy’, above n 13 at 92. See generally, FD ‘Agostino, Epieikeia. Il tema dell’equità nell’antichità greca (Milano, Giuffrè, 1973). 16 K Eden, Hermeneutics and the Rhetorical Tradition: Chapters in the Ancient Legacy and Its Humanist Reception (New Haven, Yale University Press, 1997) 3 and ch 4. 17 See L Floridi, Sextus Empiricus: The Transmission and Recovery of Pyrrhonism (New York, Oxford University Press US, 2002) 40–44. 18 DH Lawrence, Studies in Classic American Literature (New York, Viking Press, 1922) 17–18. 19 G Highet, The Classical Tradition: Greek and Roman Influences on Western Literature (New York, Oxford University Press US, 1949) 193. 20 See eg, Sir John Jackson Limited v Owners of the Steamship ‘Blanche’ Her Master and Crew [1908] AC 126 (HL) 135 (Lord Atkinson). See also, generally, RB Marcin, ‘Epieikeia: Equitable

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Equitable Reading English law as the more familiar idea of equity as a source of supplemental remedies.22 The early modern stage of that tradition is marked by Plowden’s extensive exposition on the equity of the statute in Eyston v Studd,23 which in turn was echoing book five of Aristotle’s Nichomachean Ethics. Plowden said the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law [and] it is a good way, when you peruse a statute, to suppose that the lawmaker is present, and that you have asked him the question you want to know touching the equity; then you must give yourself such an answer as you imagine he would have done, if he had been present.24

Allen acknowledges that although this ‘may seem naïve’, ‘it is not an altogether fantastic description of the feat of imagination which Courts still have to perform in endeavouring to “carry out the intention of the legislature’”.25 As recently as 2006, Lord Hope acknowledged in the House of Lords that ‘a statute is always speaking…where the language permits there is this element of flexibility. It can be adapted to contexts that were not foreseen when it was enacted’.26 Judges are generally wary of looking to the ‘equity of the statute’ and prefer to read statutes as literally as possible.27 Such caution is understandable. There is always danger beyond the letter of the law, which in extreme cases is extreme danger – it has been observed, for instance, that the National Socialists established fascism in Germany through a prerogative reading of legal codes drafted in the non-fascist Weimar Republic.28 In Vichy France, the Nazis’ prerogative reading of laws was just as extreme.29 And yet it is precisely because terrible things may lurk between the lines of laws, that the equitable art of reading beyond the letter must be cultivated – and cultivated by an appropriate ethic. The alternative is to refuse to Lawmaking in the Construction of Statutes’ (1978) 10 Connecticut Law Review 377, 392–97; SE Thorne, ‘The Equity of a Statute and Heydon’s Case’ (1936) 31 Illinois Law Review 202; WH Loyd, ‘The Equity of a Statute’ (1909) 58 University of Pennsylvania Law Review 76, 76–86. JF Manning, ‘Textualism and the Equity of the Statute’ (2001) 101 Columbia Law Review 37 contains a useful history of the concept, albeit to argue that the concept is peculiarly English and does not readily translate into US constitutional interpretation. 21 See eg, IRC v Cook [1946] AC 1, 10 (HL). 22 See L Hutson, ‘Not the King’s Two Bodies’ in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 166−198, 171. 23 Eyston v Studd (1574) Plow 459. 24 Ibid at 465ff. 25 CK Allen, Law in the Making 4th edn (Oxford, Clarendon Press, 1946) 374. 26 Powerhouse Retail Ltd v Burroughs [2006] UKHL 13 para [26]; [2006] ICR 606, 615. 27 Brandling v Barrington (1827) 6 B & C 467 at 475 (Lord Tenterden CJ); Vacher’s Case [1913] AC 107 at 130 (Lord Moulton). 28 M Franklin, ‘A New Conception of the Relation Between Law and Equity’ (1951) 11(4) Philosophy and Phenomenological Research 474–88, 483; discussing Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford, Oxford University Press, 1941). 29 Weisberg, Poethics, above n 14 at 136–87. See generally, B Durand, J-P Le Crom and A Somma (eds), Droit sous Vichy (Frankfurt am Main, Vittorio Klostermann, 2006).

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Excursion look beyond the letter at all, but such capitulation would merely replace the error of abusive reading beyond the law with the error of abuses caused by reading the law too strictly. There are dangers of extremism within the letter as much as without, which is why Radbruch wrote (in the immediate aftermath of the Holocaust) that we ‘arm ourselves against the recurrence of an outlaw state like Hitler’s by fundamentally overcoming positivism’.30 Perhaps the message was heard, for it has been said that the search for the equity of the statute is nowadays ‘indispensable’ in countries governed by a civil code.31 Equitable reading should be considered equally indispensable in common law jurisdictions, especially in jurisdictions deluged by a superfluity of legislation. The United Kingdom is one such. In August 2006, an article in The Independent newspaper recorded that the government under Tony Blair had created more than three thousand new criminal offences during the nine years of its tenure to that date – ‘one for almost every day it has been in power’.32 It would take a blind faith indeed to believe strictly in the letter of laws spewed forth at such a rate. The Human Rights Act 1998, which confirmed the binding status in UK law of the European Convention on Human Rights and Fundamental Freedoms (1950) (‘ECHR’) takes a step towards revitalising the tradition of equitable interpretation by requiring that ‘so far as it is possible to do so’ UK legislation ‘must be read and given effect in a manner which is compatible with the Convention rights’.33 This is a significant step, because it admits a principle of ‘benevolent construction’, but it is also a modest step because it does not permit a statute to be construed ‘contrary to its plain meaning’;34 and nor should it. An equitable reading is never contrary to plain meaning even if the judge must occasionally read beyond the simplicity of an isolated statement in order to understand the plain meaning of the statement in the context of the statute as a whole. If the statute as a whole does not completely anticipate a particular case, and no statute 30 G Radbruch, ‘Gesetzliches Unrecht und U¨bergesetzliches Recht’ first published in (1946) 1 Süddeutsche Juristen-Zeitung 105–08 (trans BL Paulson and SL Paulson, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’ (2006) 26(1) Oxford Journal of Legal Studies 1–11, 8). 31 S Herman, ‘The “Equity of the Statute” and Ratio Scripta: Legislative Interpretation Among Legislative Agnostics and True Believers’ (1994) 69 Tulane Law Review 535, 538. 32 N Morris, ‘Blair’s frenzied law making’ The Independent (16 August 2006). 33 S 3(1). In R v A (No 2) [2002] 1 AC 45, the House of Lords relied on the right to a fair trial established by Article 6 of the ECHR when permitting the defendant in a rape trial to refer to his shared sexual history with the complainant. This was despite s 41 of the Youth Justice and Criminal Evidence Act 1999, which for most purposes prohibited the defendant from making reference to the complainant’s sexual history. In the US, any genuinely ambiguous provision in a statute will be read where possible in a way that will not cast doubt on its constitutionality (Ashwander v Tennessee Valley Authority 297 US 288 (1936)). 34 Levi Strauss & Co. and Levi Strauss (UK) Ltd v Tesco Stores Ltd, Tesco Stores Plc and Costco Wholesale UK Ltd [2002] ETMR 95; [2000] EWHC 1556 (Ch D) [44] (Pumfrey J). In R (Wilkinson) v IRC [2005] UKHL 30; [2005] 1 WLR 1718 (HL), a widower failed when he argued that in order to avoid sex discrimination, a fiscal statute conferring an entitlement on widows ought to be interpreted as conferring the same entitlement on widowers. Discussed in Jan van Zyl Smit, ‘The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza’ (2007) 70(2) Modern Law Review 294–306.

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Equitable Reading can anticipate every case, equity must also make plain sense of that. Hence Pomeroy’s contention (following Aristotle) that equity should supplement ‘the provisions of a statute’ even where they are ‘perfectly clear’ if they ‘do not in terms embrace a case which, in the opinion of the judge, would have been embraced if the legislator had carried out his general design’.35 The tradition of equitable reading has largely been marginalised in English law, although one suspects that it thrives disguised in the default language of ‘policy’. That is an unfortunate disguise. The saying is true – ‘policy is an unruly horse’. Equity, on the other hand, presents the very picture of a wild horse bridled – neither rule-bound nor unruly – as we shall see in future chapters. It was once thought that the tradition of equitable reading has no place in the context of fiscal statutes: [i]n a taxing act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.36

Yet even here, the judicial instinct could not resist the equitable urge to ‘look’, not literally, but ‘fairly’ at the statutory language; and it has since been acknowledged that the principle of looking beyond the literal meaning of language is applicable to all statutes.37 A more generous species of equitable reading of statutes has always been of central significance to the law of charity. Today a charitable purpose is one within a list of charitable purposes set out in the Charities Act 2006 or ‘any purposes that may reasonably be regarded as analogous to, or within the spirit of’ that list.38 This replaces the previous law which provided that a charitable purpose was any purpose deemed to be ‘within the spirit and intendment’ of the preamble to the Statute of Charitable Uses (1601),39 which phrase was held to be synonymous with ‘the equity of the statute’.40 The authorities demonstrate an appropriate lack of confidence in the strict letter of the law of charity and this is surely because the concept of charity has been imported, loaded with meaning, from languages beyond the law. As the Lord Chancellor, Lord Cairns, once said: ‘there is, perhaps, not one person in a thousand who knows what is the technical and the legal meaning of the term “charity”’.41 Lord

35 JN Pomeroy, A Treatise of Equity Jurisprudence (in three volumes) vol I (San Francisco, AL Bancroft and Co, 1881) 36 (para [44]). 36 Cape Brandy Syndicate v IRC [1921] 1 KB 64 at 71 (Rowlatt J). 37 In WT Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300 (HL) Lord Wilberforce confirmed that a subject is only to be taxed upon clear words, but confirmed (at 323C–D) that ‘clear’ meaning is not limited to ‘literal’ meaning. See also, IRC v McGuckian [1997] 1 WLR 991, 998–99 (HL). 38 Charities Act 2006 s 2(4)(b), (c) (emphasis added). 39 43 Eliz I c.4. 40 Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73 at 88 (Russell LJ); Dolan v Macdermot (1867–68) LR 3 Ch App 676, 678. 41 Dolan v Macdermot, ibid.

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Excursion Macnaghten (who once admitted that ‘nobody by the light of nature ever understood an English mortgage of real estate’)42 could only achieve clarity in the legal language of charity, by artificially cleaving it from the common sense of the word: Of all the words in the English language bearing a popular as well as a legal signification I am not sure that there is one which more unmistakably has a technical meaning in the strictest sense of the term, that is a meaning clear and distinct, peculiar to the law as understood and administered in this country, and not depending upon or coterminous with the popular or vulgar use of the word.43

Lord Macnaghten admits that the law has captured charity and specialised the sense of the word charity in much the same way that I say it has captured and specialised equity. The concept of equity was imported into the law as the concept of ‘charity’ was imported and should be approached with the same humility.

The Constancy of Remedial Equity The effort to encapsulate the distinctly non-legal concept of charity in legal terms has produced a law of charity which is not very systematic at all; indeed it is not so much ‘law’ as a catalogue of individual cases loosely connected by certain broad factors, the most significant being the fact that they are officially considered to confer benefit on the public. Lord Kames could have been speaking of the English law of charity today when he said of charity that ‘the wisest heads would in vain labour to bring it under general rules’.44 What Lord Kames said about charity, Maitland said about equity in English law when he observed that it is ‘a collection of appendixes between which there is no very close connection’ and that if the law were ‘put into systematic order, we shall find that some chapters of it have been copiously glossed by equity, while others are quite free from equitable glosses’.45 It is true that equity, like charity, cannot be wholly contained within the confines of systematic general law, but this is not because these ideas lack coherent meaning, it is simply that these ideas have meanings which go beyond meanings that can be categorised in general law. The apparent unevenness of equity’s intervention in law is not attributable to the nature of equity but to the rigidity of the law. When rigid general law is laid upon the uneven ground of nature it will touch at certain points and miss at others. Aristotle attributes the fault, not to law, but to the unevenness of nature: 42

See ch 3 at 130. Commissioners for Special Purpose of the Income Tax v Pemsel [1891] AC 531 at 581. 44 HH Kames, ‘Introduction’ in Principles of Equity (1760) (Edinburgh, Bell & Bradfute, 1825) 15. 45 FW Maitland, Equity: A Course of Lectures 2nd edn (Cambridge, Cambridge University Press, 1936) 19. 43

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The Constancy of Remedial Equity In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing.46

Wherever one lays the blame, there is undeniably a fault between strict law and nature – including human nature. Sometimes the law fits with nature, and sometimes it does not. Equity is only required to intervene where the law misses, but this does not mean that equity is inconsistent any more than different shadows cast by different hills indicate inconsistency in the sun. Of course equity appears inconsistent if one is committed to the fiction that law is fixed and infallible, but life does not revolve around the law any more than the sun revolves around the earth. When one looks beyond the law one sees that equity is consistent in its approach, because it has a consistent attitude or ethos. Sir JW Jones understood this: [T]he unwritten law, in its aspect of what equity or fairness requires in the case…can be accorded an element of generality in that the attitude of approach represented by it towards special problems expresses a fundamental human striving to fill the gap which constantly opens between enacted law and the calls of justice.47

The only word in this passage which is doubtful is ‘generality’. ‘Constancy’ is a better word. Equity is a constant attitude. It is, I would suggest, very similar to what Hegel called a ‘living unity’, which is virtuous because it does not have a constant form but constantly accommodates the contours of life: [A] living unity, is quite different from the unity of the concept; it does not set up a determinate virtue for determinate circumstances, but appears, even in the most variegated mixture of relations, untorn and unitary. Its external shape may be modified in infinite ways; it will never have the same shape twice. Its expression will never be able to afford a rule, since it never has the force of a universal opposed to a particular.48

When I describe equity as a constant attitude and a living unity, I mean of course that equity is applied by human judges – not just those in courtrooms but by all of us. It is therefore incumbent on us all constantly to bend the rules where they

46

Aristotle, The Nichomachean Ethics book 5 ch 10 (trans WD Ross). J Walter Jones, The Law and Legal Theory of the Greeks (Oxford, Clarendon Press, 1956) 67. Holdsworth also sees a unity in the principles underlying equity. He even suggests that equity imposes ‘distinct intellectual characteristics…upon those who study the principles and rules of equity’ (William S Holdsworth, ‘Equity’ in AL Goodhart and HG Hanbury (eds), Essays in Law and History by Sir William S Holdsworth (Oxford, Clarendon Press, 1946) 185; originally published at (1935) 51 Law Quarterly Review 142). This is a fairly oppressive image of equity’s effects. It would be more pleasing and more precise to say that contemplation of (and practice in) equity has the potential to engender a distinctive ethical approach to law, which we might call an ethic that is critically corrective of the law but does not undermine it. 48 Georg Wilhelm Friedrich Hegel, ‘The Spirit of Christianity’ in TM Knox (trans) and R Kroner (introduction), GWF Hegel: Early Theological Writings (Philadelphia, University of Pennsylvania Press, 1971) 246. This passage is quoted in an essay on equity by the philosopher John Lucas: ‘The Lesbian Rule’ (1995) 1 Philosophy 195, 196. 47

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Excursion cause harm through their rigidity. As for routines, it is commonly said that a routine is either ‘followed’ or ‘broken’; but perhaps even routines are better bent than broken. Some routines require instant and radical reform, but for more mundane matters it may be that change by ‘nudges’ better accords with the practical contingency of the way we live and the psychological reality of the way we think.49

The ‘Science’ Fiction of Law The strictness, generality, formality and routine of legal rules combine to create a gap – an ‘equity gap’ – between the general law and more pleasing justice. Even if we fantasise that there might come a moment when the law, in all its formal and flexible aspects, will be considered perfectly fitting with every eventuality of a given society, one can be sure that such a society will change faster than its law, so time itself will open up the gap between the law and more pleasing justice. A great deal of judicial and scholarly effort is devoted, rightly, to the removal of internal illogicality and vagueness from the law – this is the scientific or doctrinal school of jurisprudence. A comparable effort is devoted no less properly to understanding the social influences which produce the law and which produce the ever-open gap between law and society. It would be a mistake to assume, though, that it is within the competence of jurisprudential science or the empirical science of legal sociology ever to get the full measure of justice. I am with John Lucas who believes that ‘the complexity and variableness of human beings is infinite’ and that this precludes us ‘from hoping that scientific generalization ever would become practicable in the humanities’.50 When Kiss wrote that ‘the problem of how to apply the law cannot be solved scientifically except by considering the problem of unprovided cases’,51 he was right to identify the problem of ‘unprovided cases’ – which is the problem of the equity gap – but he was wrong to suppose that there is a scientific solution to that problem, just as Langdell was wrong when he famously asserted ‘that law is a science’.52 They were writing at a time when the paradigm of empirical science was paramount and imagined itself separate and superior to the arts and humanities. Now we see, as Lucas sees, that in conceptual terms ‘the difference between the humanities and 49 For a stimulating commentary on this phenomenon, see RH Thaler and CR Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven, Yale University Press, 2008). 50 Lucas, ‘The Lesbian Rule’, above n 48. 51 G Kiss, ‘Equity and Law: Judicial Freedom of Discretion’ in Science of Legal Method: Selected Essays (Boston, Boston Book Company, 1917) 146–58. 52 CC Langdell, ‘Harvard Celebration Speech’ (1887) 3 Law Quarterly Review 123, 124. See P Goodrich, ‘Druids and Common Lawyers. Notes on the Pythagoras Complex and Legal Education’ (2007) 1(1) Law and Humanities 1, 18. Goodrich notes Stevens’ suggestion that Langdell confused two types of science – the empirical and the rational (R Stevens, Law School. Legal Education in America from the 1850s to the 1980s (Chapel Hill, NC, North Carolina University Press, 1983)).

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The ‘Science’ Fiction of Law science is one of degree rather than one of kind’.53 Science at its furthest frontier is a world of pictures: it is a cosmos of ‘black holes’, ‘curved space’ ‘string theory’ and ‘waves of light’. My project is not opposed to legal science, but I do oppose the notion that legal science is sufficient without legal art. Colin and Capitant, who were leading commentators on the French Civil Code, asked of the law ‘est-il une science ou un art?’ and concluded that it is both.54 Even in Germany, where faith in legal science (rechtswissenschaft) is profound, concession is made to discretionary relaxation of the rules in particular cases – which is called billig Ermessen or Billigkeit.55 The equitable mode of reading the Code is also deeply embedded in German legal culture. Bussani and Fiorentini observe ‘how wide is the portal through which this kind of equity finds its way into German private law’, noting that: This portal is kept open by the Treu und Glaube [‘good faith’] principle of § 242 BGB, as well as by the other Generalklauseln requiring judgments to be based upon good morals (gute Sitte) or necessary care (erforderliche Sorgfalt),56 all of which oblige the judge to seek the legal grounds for the decision elsewhere than in positive law [57]…§ 242 and the other Generalklauseln provide legitimacy to the equitable work of the interpreter, enabling the latter to exploit his/her reservoir of legal culture outside the boundaries of positive law.58

If the art of equity is always necessary in jurisdictions which subscribe to the sanctity of a legal code, we should not be surprised to find that it is even more prominent in common law jurisdictions, which have no overarching code but rely to a great extent on judicial creativity in particular cases. With regard to statutory interpretation, one of the Law Lords of England and Wales has provided an emphatic answer to the question posed by Colin and Capitant – ‘le droit est-il une science ou un art?’ Lord Steyn has stated that the interpretation of a statute ‘is not a science. It is an art’.59 Case law develops in England and other

53

Lucas, ‘The Lesbian Rule’, above n 48 at 199. A Colin and H Capitant, Cours élémentaire de droit civil français (Paris, Librairie Dalloz, 1931) vol I at 6, para [5] (first published 1914–16). 55 German BGB, paras: 315, 571, 829, 920, 1246, 1360a, 1361, 1361a, 1361b, 1576, 1577, 1581, 1587 I, 1611, 1649, 2057a. See generally, P Gottwald, Münchner Kommentar zum BGB, 2a 4th edn (Munich, CH Beck, 2003) RdNr 30, 1874 § 315. (All references in this note are from M Bussani and F Fiorentini?, ‘The Many Faces of Equity. A Comparative Survey of the European Civil Law Tradition’ in D Carpi (ed), The Concept of Equity (Heidelberg, Universitätsverlag Winter, 2007) 101–49, 122, fn 82.) 56 ‘BGB, §§ 138, 817, 819, 826 (regarding good morals); §§ 241a II, 259 II, 276 II, 831 I, 833 s., 836, 2028 II (regarding necessary care).’ (This text taken from the footnote in the original.) 57 The original (long) footnote begins with the words: ‘Literature on § 242 is simply enormous’. The reader is directed to consult the original. In brief, the authors observe that the origin of § 242 lies ‘in the bona fidei iudicia of Roman law and the equitable creation of law by the praetor’ (they cite MJ Schermaier, ‘Bona fides in Roman Contract Law’ in R Zimmermann and S Whittaker (eds), Good Faith in European Contract Law, The Common Core of European Private Law Project (Cambridge, Cambridge University Press, 2000) 63ff). 58 Above n 55 at 123. 59 ‘The Intractable Problem of the Interpretation of Legal Texts: The John Lehane Memorial Lecture 2002’ (2003) 25 Sydney Law Review 1, 8. 54

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Excursion common law systems in a way which could hardly be called scientific. Cases are the experimental basis of legal ‘science’ in common law jurisdictions, but they are in no real sense empirical, because legal cases are experiments that cannot be repeated. Even if similar cases recur, it is not possible to predict outcomes with anything close to the levels of statistical certainty which would normally be required to establish a scientific proof. Take the example of a recent case in which a farmer claimed to have acquired legal title to another person’s (very valuable) land through the process of ‘adverse possession’ (commonly referred to as ‘squatting’). The judge at first instance reluctantly held in favour of the farmer.60 The Court of Appeal reversed that decision on appeal,61 but on further appeal to the House of Lords the judgment at first instance was restored by their Lordships – again reluctantly.62 The decision was then referred to the European Court of Human Rights (Former Section IV) in Strasbourg63 where UK law on the subject was disapproved, until finally it was appealed to the European Court of Human Rights (Grand Chamber)64 where the UK law was finally upheld. So the matter passed through five courts and each court in broad terms disagreed with the decision of the previous court. So long as litigation relies on fallible judges for resolution, we should not expect a perfect legal science.65 There is never only one answer to a legal dispute; indeed it is a rare case that has only one right answer. As Lord Macmillan admitted: ‘in almost every case except the very plainest, it would be possible to decide the issue either way with reasonable legal justification’.66 Ronald Dworkin fantasises that there is always one right answer to every case and that a hypothetical Herculean judge could find it.67 Perhaps Hercules might, but then perhaps Zeus would find another answer on appeal. Some jurists might like to regard the courts in the case of the squatter as a series of laboratory glasses in a grand scientific experiment which ultimately produces the correct compound at one end from the raw factual materials which went in at the other. Of course it is nothing of the sort. The system of judicial appeals is not a scientific process which produces an objectively correct outcome, the outcome often turns in large part on the purely practical contingency of running out of courts. The nature of law in such a system is less like a scientific experiment and more like a wheel of fortune: the nature of the legal outcome is determined at the point the wheel stops spinning, and would have determined earlier if the litigants had been at any stage unwilling, or financially unable, to give it an extra push. From the judges’

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JA Pye (Oxford) Ltd v Graham [2000] 3 All ER 865. [2001] EWCA Civ 117, [2001] Ch 804. JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419. 63 JA Pye (Oxford) Ltd v United Kingdom (App no 44302/02) ECHR 15 November 2005. 64 JA Pye (Oxford) Ltd v United Kingdom (App no 44302/02) ECHR 8 November 2006. See O Radley-Gardner, ‘Good-Bye to Pye’ [2007] 5 Web JCLI (online). 65 See generally, L Rosen, Anthropology of Justice: Law as Culture in Islamic Society (Cambridge, Cambridge University Press, 1989). 66 HP Macmillan, Law & Other Things (Cambridge, Cambridge University Press, 1937) 48. 67 R Dworkin, Law’s Empire (Harvard, Belknap Press of Harvard University Press, 1986). 61 62

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The ‘Science’ Fiction of Law perspective it is a living conversation across a range of reasonable alternative possibilities, and it just happens that the conversation must stop sometime. Law is not a pure empirical science, and, by the same token, it is not a pure logical science. Holmes’ aphorism has been so often-repeated, it has become trite; but it is nevertheless true: ‘The life of the law has not been logic: it is has been experience’.68 This is seen clearly even in an area of law which is supposed to be more logical than most – the law governing the conveyance of real property. Suppose Jack borrows money from a bank with a view to purchasing a house and promises that, as soon as the land is acquired, he will grant the bank a charge over the land by way of security. Now suppose Jack enters into occupation of the house prior to completing the purchase, so that he is in occupation the moment title is transferred into his name. Logically there can be no charge on his title until Jack has title to charge, so the moment ‘A’ at which Jack acquires title must be prior to the moment ‘B’ at which the bank acquires a charge on his title. According to strict logic, it follows that Jack is in occupation with unencumbered title prior to his being in occupation with title encumbered with the charge. His contract with the bank bars him from claiming to have priority over the bank; but suppose that his lover, Jill, was in occupation with him at all times and is not subject to the contract, and suppose that she had contributed the cash for the deposit on the house, so that Jack holds his title on trust not only for himself but also (as to some beneficial share) for her. According to strict logic, Jill is in occupation with a share before the bank has its mortgage and because Jill has no contract with the bank she is not barred from asserting the priority of her interest over that of the bank (assuming such background factors as proper behaviour by all parties throughout the relevant period). The outcome, under which Jill remains in occupation even if Jack is evicted for defaulting on the loan, is unfair to the bank. How can Jill’s interest in the house take priority over the bank’s when the lovers would have had no house at all were it not for the money loaned by the bank? Property law logic leads to an unjust outcome. Faced with a case of this sort, the House of Lords has held that the mortgagee’s charge should take priority over the interest of the mortgagor’s lover. Logic was rejected in favour of experience:

68 OW Holmes, The Common Law (1881) (Stilwell, KS, digireads.com, 2005) 1. The problem with Holmes’ engagement with experience is that it was sometimes more terrifyingly calculating than any system of logic. His decision in Buck v Bell 274 US 200, 207 (1927) to allow the compulsory sterilisation of a young mentally disabled woman who was an inmate of a state institution was delivered in terms which nowadays beggar belief. Holmes’ argument was that citizens who contribute to society’s welfare may be called upon to die for their country, so those who ‘sap the strength of the state’ should be called upon to sacrifice their reproductive capacity. Hence his infamous dictum: ‘three generations of imbeciles is enough’. It is notable, and may be significant, that this phrase was uttered by the man who once said that ‘the law is not the place for the artist or the poet’ (‘The Profession of the Law’ in Collected Legal Papers (New York, Harcourt, Brace and Howe, 1920) 29 at 29–30)).

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Excursion [A]s a matter of legal theory, a person cannot charge a legal estate that he does not have, so that there is an attractive legal logic in [the argument that the purchaser acquires an unencumbered estate before the mortgagee acquires a charge on it]. Nevertheless, I cannot help feeling that it flies in the face of reality. …. The reality is that the purchaser of land who relies upon a building society or bank loan for the completion of his purchase never in fact acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise.69

This is a fascinating piece of judicial rhetoric. Property law logic has rightly been rejected in favour of common sense justice, but the learned judge is at pains to disguise the pragmatic nature of the decision in terms of an appeal to ‘reality’. On close examination, the ‘reality’ appealed to turns out to be a highly artificial form of legal fiction. His Lordship says that the purchaser of land ‘never in fact acquires anything but an equity of redemption’, but there is very little about an equity of redemption that exists ‘in fact’. It is about as complex a legal fiction as one can imagine. Even Lord Bramwell confessed that ‘one knows in a general… not in a critical way, what is an equity of redemption’.70 The reality of land is soil and three-dimensional space, from this the law abstracts an estate and from this a legal mortgage and from this an ‘equity of redemption’. Equity, which does not favour abstraction, is forced to adopt the fiction of an ‘equity of redemption’ to ensure that mortgagors remain in their homes despite the threat of eviction which accompanies the formal force of the legal mortgage deed. The legal ‘reality’, when we strip away the mythology of the mortgage of the fee simple and the equity of redemption, is simply that the mortgagor has the nearest thing to absolute title that English law knows, while the mortgagee acquires nothing but a charge on that title by way of security.71

The Cultural Story of other Countries and other Worlds To read what others say about equity within the law, and to read equitably, is to scrutinise the supposedly secure boundaries of the law by external lights. As James Boyd White has written:

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Abbey National Building Society v Cann [1991] 1 AC 56 at 92F–93B (Lord Oliver). Salt v Marquess of Northampton [1892] AC 1 (HL) 18. 71 G Watt, ‘The Lie of the Land: Mortgage Law as Legal Fiction’ in E Cooke (ed), Modern Studies in Property Law – Volume 4 (Oxford, Hart Publishing, 2007) 73–96. See also, ch 3 at 130. 70

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The Cultural Story of other Countries and other Worlds Reading texts composed by other minds in other worlds can help us see more clearly (what is otherwise nearly invisible) the force and meaning of the habits of mind and language in which we shall in all likelihood remain unconscious unless led to perceive or imagine other worlds.72

We take a step in the right direction when we compare the laws of one national jurisdiction with the laws of another, and some fine work has been done to advance our understanding of equity in this way.73 The most sophisticated schools of comparative law examine the roots of laws – historical roots, political roots, economic roots and so forth. However, relatively little attention is paid to the cultural earth – by which I mean the literary earth, the artistic earth, the dramatic earth – from which the roots sprang and by which they continue to be nourished. In the end it will not suffice to look merely to the laws of other lands, we must, as White says, look to the literatures of ‘other worlds’. White has written that one of the merits of literature is that ‘it humiliates the instrumentally calculating forms of reason so dominant in our culture (by demonstrating their dependence on other forms of thought and expression)’.74 Consider the law’s reliance on the basic distinction between form and substance, with the correlative distinction between letter and intention. Are such ideas not dependent on distinctions embedded in cultural narrative, including cultural literature? Where would they be without the distinction between body and soul and the mythology of shape-shifting? One of the topics I teach my law degree students is the law of tracing, which governs the process of following the substantial value of an asset into another asset in the event of exchange. Here is a legal story in which substantial ‘value’ is maintained despite changes in outward form. It has an essential correspondence with tales of shape-shifting that recur in the cultural literature of societies worldwide. In European cultural literature this strand of story is exemplified in Ovid’s Metamorphoses and fairy tales such as ‘Dapplegrim’ (in which a princess pursued by a suitor changes into a duck and then a loaf and so forth).75 Robert M Cover was right, when he wrote: No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.76

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JB White, ‘What Can a Lawyer Learn from Literature?’ (1989) 102 Harvard Law Review 2014,

2022. 73 See eg, RA Newman (ed), Equity in the world’s legal systems; a comparative study (dedicated to René Cassin) (Brussels, Établissements Émile Bruylant, 1973). 74 JB White, ‘Law and Literature: No Manifesto’ (1988) 39 Mercer Law Review 739 at 741. 75 ‘Dapplegrim’ from The Red Fairy Book by Andrew Lang (1890). The tale is derived from the Norse fairy tale Grimsborken (see the Norske Folkeeventyr of PC Asbjørnsen and J Moe, translated into English by Sir George Webbe Dasent as Popular Tales from the Norse, 1859). 76 RM Cover, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4, at 4–5.

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Excursion The purpose of suggesting a connection between law and cultural literature is not to invite an empirical search for a causal connection between literature and the law – such a connection is presumably not susceptible to empirical proof or disproof. The purpose is to open the imagination to the possibility of a connection – this is enough to produce the desired reflective critique of the law’s assumed self-sufficiency. We might, for example, imagine the possibility that the peculiar prominence of equity (and the trust idea) in English law is not solely attributable to empirically quantifiable historical conditions, but might owe something to a cultural story, a national self-narrative of ‘Englishness’, one which is as much a maker of history as a product of it. The English self-narrative prides itself on a culture of tolerance and a suspicion of absolutist ideologies (including the ideologies of absolute monarchy, bloody revolution, religious extremism and fascism) and related to this is a sense of equitable compromise inherent in the assumed national preoccupation with bargaining and trade. Hence the Scottish author Sir Walter Scott writes of ‘natural notions of equity becoming a British merchant’.77 The fact that equity and the trust are opposed to extreme formality and the fact that the trust is neither absolutely property nor absolutely obligation might therefore go some way to explaining the reception and retention of such ideas in the English mind. In this vein, Professor Goodhart has suggested that Locke’s idea of government as a form of trust – the ‘legislative power’ being ‘limited to the public good of society’78 – is ‘especially congenial to English ideas and Traditions’.79 History will surely debunk English (or British) pretension to such ideals as ‘moderation’, ‘tolerance’, ‘restraint’, ‘fairplay’, ‘cricket’, ‘gentlemanly behaviour’ and ‘sportsmanship’, but the story trumps the history.

Law, Humanities and the Humane The present study aims to discover where the idea of equity, even equity as it appears in English law, has been planted and cultivated by the arts and humanities. The law is a discipline of letters, a discipline concerned with words and with ways of weaving words into texts. It is therefore assumed that law can learn from other disciplines concerned with letters and texts including such disciplines as literary studies, history, rhetoric, classics and theology. Much of the best work in the field of law and literature is currently undertaken by scholars in these disciplines looking in on the law from the other side of the door. I also assume that the law, as an art of performance and representation, can learn from theatre, 77 Sir Walter Scott, Rob Roy (Edinburgh, Archibald Constable; London, Longman, Hurst, Rees, Orme and Brown, 1817) ch 2. 78 John Locke, Second Treatise of Government ch XI section 135. See P Laslett (ed), John Locke, Two Treatises of Government (Cambridge, Cambridge University Press, 1963). 79 AL Goodhart, ‘English Contributions to the Philosophy of Law’ (July 1948) 48(5) Columbia Law Review 671–88 at 677.

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Law, Humanities and the Humane film, television, sculpture, painting and all the arts of performance and representation.80 The actor’s art is ‘to comprehend the thoughts that are hidden under words’,81 which makes it an art of equitable interpretation. It is now almost routine to distinguish law in literature (for example, the ‘trial’ in Harper Lee’s To Kill a Mockingbird) from law as literature (for example, the judicial style of Justice Benjamin Cardozo) and law of literature (for example, the law of copyright).82 All these categories can be inverted, so we also have literature in law (for example, judicial reference to the works of Shakespeare),83 literature as law (for example, legal fictions) and literature of law (for example, the didactic poem, ‘The Pleader’s Guide’).84 There is of course, mainstream legal literature – including statutes, reported judgments and academic commentary. The reader is free to bear these categories in mind throughout this book, but I would caution against placing too much faith in them. For one thing, the categories may overlap and intersect in complex ways – it is possible to identify law as literature in literature, and so forth. Provided both disciplines are engaged in constructive critique of the other, one should be slow to place limits on the ways in which they might engage. Dolin says ‘it is not the role of literature to introduce love into an aridly rationalist law’.85 This must be true because any stereotypical opposition between law and literature is always a false opposition that obstructs us from seeing the potential for law to be literature and for literature to be law. However, if we expand the categories of law and literature into a world of laws and literatures we can easily imagine a role for a kind of literature to introduce love into a kind of law. Better still; let us ask not what literature and law can do for each other, but what law ‘and’ literature can do for us. True interdisciplinary inquiry has the power to bring people together because it is conducted with the ethos of ‘and’.86 It is appropriate at this point to mention the image on the cover of this book. It shows a bird perched on the open door of its cage, looking to the world beyond. We will find that the image is pertinent to the portrayal of equity in Dickens’ Bleak House, but for now it will suffice to say that the uncaged bird is intended to represent equity beyond the confines of general law. Like a peregrine bird, the

80 See S Levinson and JM Balkin, ‘Law, Music, and Other Performing Arts’, (1991) 139 University of Pennsylvania Law Review 1597. I compare theatre to the equitable doctrine of specific performance in ch 3 at 114. 81 William Macready, quoted by Henry Irving in an address to the students of Harvard University, 1885 (The Drama: Addresses by Henry Irving (London, William Heinemann, 1893). Cited in JR Brown, Shakespeare’s Plays in Performance (London, Edward Arnold, 1966) 53. See generally, ch IV, ‘Subtext’. 82 Ephraim London was the first to offer the distinction between ‘The Law in Literature’ and ‘The Law as Literature’ as the titles to the two volumes of his anthology The World of Law (New York, Simon & Schuster, 1960). 83 See eg, R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61; [2008] 3 WLR 955 (HL) para [151] (Lord Mance). 84 I Anstey, The Pleader’s Guide, A Didactic Poem etc (London, Cadell and Davies, 1810). 85 K Dolin, A Critical Introduction to Law and Literature (Cambridge, Cambridge University Press, 2007) 212. 86 See also, J Cole, ‘Thoughts from the Land of And’ (1988) 39 Mercer Law Review 907.

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Excursion concept of equity flies freely over the various fields of human thought.87 When it lands in a particular field, it is understood in the context of the field – the scholar of hermeneutics sees it as a way of reading, the scholar of rhetoric sees it as a way of speaking, and so on. Its meaning is always contextual in this sense, but the reader who has the imagination to move between the fields will begin to suspect that equity is essentially the same in each place. The cage in the image represents the confines of the regular rules of law. English law, and the Court of Chancery especially, has appropriated equity as if it were asserting that ancient right to appropriate res natura which Justinian described in his Institutes: Wild animals, birds, and fish, that is to say all the creatures which the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner.88

Where did English law find the idea of equity? Perrault’s tale of The Sleeping Beauty provides a visual clue. When the King and his council are under the spell of a magical sleep, we are told that ‘between the spectacles on the Archbishop’s nose and the spectacles on the Lord Chancellor’s a spider has spun a beautiful web’.89 The web of equity in the Lord Chancellor’s Court of Chancery was spun out of an ecclesiastic concern for conscience, and interwoven with the concept of epieikeia borrowed from Aristotle. Chancery’s trespass into the fields of theology and classical philosophy proved no bar to chancery’s appropriation of the idea of equity. Even this is consistent with Justinian’s Institutes: So far as the occupant’s title is concerned, it is immaterial whether it is on his own land or on that of another that he catches wild animals or birds.90

The English legal system has captured equity and turned it into ‘a reasonable measure, containing in it selfe a fit proportion of rigor . . .a ruled kind of Justice’,91 but how are we to prevent it from becoming all rules and no justice? There is a humane temptation to let the legal idea live more freely – to allow greater innovation and flexibility – but the risk is that the bird will fly out of sight. Justinian’s Institutes make it clear that if this happens, the appropriated bird regains its wild status.92 In chapter three, I will identify a possible compromise

87 Mark Fortier pursues the peregrine idea of equity across various fields in his book The Culture of Equity in Early Modern England (Ashgate, Aldershot, 2005). 88 Imperatoris Iustiniani Institutionum 2.1.12 (trans JB Moyle) (Oxford, Oxford University Press, 1913). See generally, G McLeod, ‘Wild and Tame Animals and Birds in Roman law’ in P Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (Oxford, Clarendon Press 1989) 169–76. 89 The Sleeping Beauty and Other Fairy Tales from the Old French retold by Sir Arthur QuillerCouch, above n 6 at 19. 90 Above n 88. 91 W West, The Second Part of Symboleography (1594) references are to the popular 1641 edition (London, Miles Flesher and Robert Young, 1641) 174, section 3. 92 Above n 88.

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Law, Humanities and the Humane whereby legal equity may be released from the confines of legal routines and yet remain subject to a reasonable outer limit. However, the greater part of the book is concerned, not with the doctrinal mechanics of equity in law, but with literary representations of the character of equity and with the art of equitable judgment. In his stimulating article, ‘The Law beyond the Law’,93 Noel Dermot O’Donoghue suggested that the possibility of epieikeia is made manifest through the Aristotelian virtue of gnomé which can be translated as ‘good judgment’ or ‘consideration’. For O’Donoghue it is ‘right judgment’ in relation to epieikeia which addresses the question ‘when can I go beyond the law?’94 If gnomé is the wisdom to know when and how to practise epieikeia by bending the rule, then it can be translated as the ‘art of equitable judgment’. O’Donoghue adds: It can be said, I think, that gnomé belongs to the head and epieikeia to the heart, and that together they describe the type of judge who is at once shrewd and humane, who knows the law but also knows how to apply the law to the case in hand.95

The conceptual contrast between head and heart is never a reliable one – they are, and should be, closely connected – but O’Donoghue rightly highlights the need for both to work in concert. Equity is reasonableness and the art of applying equity is reasoned. This ‘art of equitable judgment’ is an art which judges can learn, and which judges can teach us, but it is also an art which art can teach. Dickens and Shakespeare, two of the greatest exponents of their arts, are two of the many authors who will provide us with lively lessons in equity throughout the present study. The imperium of legal language is hard to resist because it is guaranteed by parliament and aligned with the monopoly of a powerful profession, and yet this makes it all the more important for lawyers to resist it. Resistance is important in the day-to-day business of the profession, where it touches lives most often. Resistance is also important at the highest levels of the judiciary, and occasionally we see it demonstrated there. A notable example is provided by Lord Denning, the former Master of the Rolls, who was in stylistic terms an English counterpart to the American judge, Justice Benjamin Cardozo. Lord Denning (1899–1999) continues to be a controversial figure because of his acute conservatism. Dennis R Klinck has shown how Lord Denning’s judgments betray an idealistic pastoral vision of England as Eden.96 Certainly he is never slow in his judgments to let us know when his idyllic landscape has been spoiled by ‘newcomers’97 or the like. There is, though, another side to Lord Denning that does not deal in crude generalities and lazy labels, and that is the side I side with. It cannot be denied

93 ND O’Donoghue, ‘The Law beyond the Law’ (1973) 18 American Journal of Jurisprudence 151–64. 94 Ibid at 154. 95 Ibid. 96 DR Klinck, ‘“This Other Eden”: Lord Denning’s Pastoral Vision’ (1994) 14(1) Oxford Journal of Legal Studies 25. 97 Miller v Jackson [1977] QB 966.

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Excursion that he was a pillar of the establishment, but it is also true that, like a pillar, he was constantly pushing against the very thing he supported. This was most clearly seen within the established edifice of the law itself, where Lord Denning demonstrated an uncommon degree of resistance to the formalism of legal language. ‘I try to make my judgments live’, he once wrote.98 He related the facts of cases in engaging and sometime humorous ways which make him a godsend to law teachers and which reveal his human face – warts and all – through the thinnest veil of text. Most laudable of all is the fact that he never felt constrained (so he informs us) to hand down a judgment he believed to be unjust. He claimed never to have uttered those deeply unsatisfactory words: ‘I regret having to come to this conclusion but I have no option!’99 (a statement equivalent to the line uttered by Angelo in Shakespeare’s Measure for Measure: ‘It is the law, not I condemns your brother’ (2.3.80)).100 For Lord Denning there was, he claimed, ‘always an option’ by which justice could be achieved.101 He understood that the general law depends on judges to bend it into shape, so we can perhaps forgive him those times when he occasionally bent the law too far.102 The deference to law displayed by Lord Chancellor Talbot is more typical of judicial attitudes. In Heard v Stamford he stated there can be no ground for a court of equity to interpose in the present case. If the law as it now stands be thought inconvenient, it will be good reason for the legislature to alter it, but till that is done, what is law at present, must take place.103

It is quite right that judges should wait for the legislature to break and remake the law, but in the meantime they should, in pressing cases, strive like Denning did to bend the law into shape as far as they are able without actually breaking it. Too much respect for law and a lack of humane imagination is a terrible thing in a judge. Lord Chancellor Talbot cared a great deal for the plight of suitors in chancery – in one case he is reported to have expressed ‘some warmth in respect of the delay’ that the parties had suffered. He even undertook some efforts to reform chancery.104 His reforming imagination was, though, woefully limited. In

98

A Denning, The Family Story (London, Butterworths, 1981) 207. Ibid at 208. 100 All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated. 101 The Family Story, above n 98 at 208. 102 His attempt in the Court of Appeal to protect deserted non-owning spouses against repossession proceedings brought by mortgagees under mortgages entered into by the deserting spouse was overruled by the House of Lords (National Provincial Bank v Ainsworth [1965] AC 1175), but the need for some such protection was apparent and Parliament soon recognised that the non-owning spouse has a right to occupy the matrimonial home and that this right is prima facie enforceable against third parties (Matrimonial Homes Act 1967). 103 Heard v Stamford (1735) 3 P Wms 409, 411. 104 M Macnair, ‘Lord King and Lord Talbot: an eighteenth century attempt to reduce delay in Chancery and its general lessons’ in CH van Rhee (ed), The Law’s Delay: Essays on Undue Delay in Civil Litigation (Antwerp, Intersentia, 2004) 181–93. 99

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Law, Humanities and the Humane 1729, when he was Charles Talbot, Solicitor General, he issued a joint opinion with the Attorney-General Sir Philip Yorke confirming the legality of slavery. Sir Philip Yorke, who went on to become Lord Chancellor Hardwicke might have seen beyond the law if he had read a little more widely than the law. Lord Campbell called him ‘the most consummate judge who ever sat in the court of chancery’,105 but criticised him for ‘his abandonment of literature and literary men’ and his ‘contempt for all liberal studies’ and for the fact that he ‘valued men only according to their rank, their riches, and their political influence’.106 Lord Denning shared Cardozo’s opinion that style is part of the substance of sound judgment107 and he made a special effort to refer to defendant and plaintiff, not by those labels, but by their names.108 A little care of this sort with regard to style can achieve a significant humanising effect on speech, and a little carelessness can have a correspondingly dehumanising effect.109 This need for care in speech is a constant refrain in the works of James Boyd White. It is a concern that goes back at least as far as Cicero, who criticised the ‘absurd and unprofitable and reprehensible severance between the tongue and brain’.110 James Boyd White and Richard Posner do not agree on the ambitions and potential for law and literature, but they both agree that judges have a responsibility with regard to the style of their speech. Posner, writing in favour of what he calls ‘aesthetic integrity’ in judicial speech, cites the example of the several judges who have carelessly referred to the cases following the leading US case on abortion as ‘the progeny’ of Roe v Wade.111 The jurisdiction of England and Wales supplies other examples of carelessness in judicial speech. In 1986, in the case of Davies v Presbyterian Church of Wales,112 Lord Templeman quite properly acknowledged that it is the role of a priest to be a ‘servant of God’, but two decades later in Percy v Board of National Mission of the Church of Scotland,113 another judge, Lord Hoffmann, described Lord Templeman’s description as ‘true for a believer but

105 John Campbell, The Lives of the Lord Chancellors and Keepers of the Great Seal of England (London, J Murray, 1849) vol 5 ch CXXIX, 1. 106 Quoted in Campbell, Lives, ibid at 167. 107 ‘We are merely wasting time, so many will inform us, if we bother about form when only substance is important. I suppose this might be true if any one could tell us where substance ends and form begins . . . Form is not something added to substance as a mere protuberant adornment’ (1938–39) 48 Yale Law Journal 489, 490 (reprinted from Benjamin Cardozo, ‘Law as Literature’ (1925) Yale Review). 108 The Family Story, above n 99 at 207. 109 For a modern ‘documentary’ critique of lawyers’ culture, see L Joseph, Lawyerland: What Lawyers Talk About When They Talk About Law (New York, Farrar Straus and Giroux, 1997) and S Krakoff, ‘Does “Law and Literature” Survive “Lawyerland”?’ (2001) 101(7) Columbia Law Review 1742–49. 110 De Oratore III 60–61. Quoted in P Dixon, Rhetoric (London, Methuen & Co Ltd, 1971) 16. 111 Roe v Wade 410 US 113 (1973). See RA Posner, ‘Judicial Opinions as Literature’ in Law and Literature (Harvard, Harvard University Press, 1998) (revised and enlarged from the 1988 1st edn) 286–87. 112 Davies v Presbyterian Church of Wales [1986] 1 WLR 323, 329. 113 Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28.

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Excursion superfluous metaphor for a lawyer’.114 Lord Hoffmann’s statement is in several senses careless. It supposes a strange world in which a lawyer and a religious believer are stark opposites with no potential overlap – a world depopulated of humans and lived in by mere labels; and it supposes a worrying world in which something as supremely important to the believer as the service of God, and the language of the service of God, can be dismissed by a judge as ‘superfluous’. In any event, his Lordship’s statement misunderstands the nature of metaphor. The ‘believer’ uses the description ‘servant of God’ as an entirely literal description of the priestly function. In chapter four, we will see more evidence of Lord Hoffmann’s suspicion of metaphors in legal language and I will argue that the assumed bright-line distinction between metaphor and legal language is untenable. Lord Hoffmann’s confidence in a solid boundary (it was traditionally represented by a ‘bar’) between the judicial office and ‘the rest’, is seen in other places. Some years before the Percy case, Lord Hoffmann sat as a member of the judicial committee of the House of Lords in a case concerning the Chilean dictator General Augusto Pinochet. In an unprecedented move, the decision in that case was set aside when it emerged that Lord Hoffmann had failed to reveal his connections to Amnesty International, which included the fact that his wife had worked for that organisation for many years. When interviewed later, his Lordship’s response was ‘I’m not biased. I am a lawyer. I do things as a judge’.115 He considered his family connection to Amnesty International to be ‘neither here nor there’. In another context he has said that ‘[u]nder the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive’.116 Lord Steyn has suggested that this statement dangerously downplays the judiciary’s constitutional responsibility to resist the force of parliamentary law.117 His Lordship referred with approval to Jeffrey Jowell who has written that judges are ‘now the ultimate arbiters (although not ultimate guarantors) of the necessary qualities of a democracy in which the popular will is no longer always expected to prevail’.118 There is no doubt that the demands of legal professionalism and the nature of ‘judging’ sometimes call for a certain functional detachment – especially where the judge’s own personal interests have to be set aside – but judges should, where appropriate, be willing to

114

Ibid at 48, para [61]. ‘A look at Lord Hoffmann’ (http://news.bbc.co.uk/1/hi/uk/235456.stm accessed 5 April 2009). 116 Secretary of State for the Home Department v Rehman (2001) [2003] 1 AC 153 at para [50]. 117 ‘Deference: A Tangled Story’ (Judicial Studies Board Lecture, Belfast, 25 November 2004). 118 J Jowell, ‘Judicial Deference: servility, civility or institutional capacity?’ [2003] Public Law 592, 599 (approved in A v Secretary of State for the Home Department [2005] 2 AC 68 para [42] (Lord Bingham)). 115

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Law, Humanities and the Humane allow the personal interests of others (including religious believers) to enter in.119 Certainly, there is no justification for any assumption that lawyers’ dispassionate language is somehow superior to the passionate languages that others use. Legal language is not more, it is calculatedly less. The case of X v A120 provides a stark demonstration of the law’s confidence in the superiority of its own language. The trustees of a marriage settlement had exercised their power to distribute very large sums of capital to the life beneficiary (the settlor’s wife) and she had then given the money to charity in accordance with her religious beliefs. When the trust beneficiary subsequently requested a very substantial part of the remaining trust capital for the purpose of making more charitable donations, the trustees applied to court for directions as to whether it was open to them to give her the money. If the trustees had kept the matter out of court and consented to the beneficiary’s request, it must be doubted that the trustees would have been held liable for breaching their trust, since there was no authority directly condemning such an extensive exercise of their power. However, when the matter came to court the judge took the predictable, though by no means necessary or desirable step of taking the absence of precedent to indicate that the trustees had no authority to exercise their power to distribute the capital as proposed. His Lordship, Hart J, said: How, as Mr Le Poidevin asked rhetorically, can the court assess the validity and nature of a moral obligation otherwise than by reference to the beneficiary’s own views on the subject? That is certainly not a question to which the court can give an abstract answer, whether by reference to the Bible or to Bentham, to Kant or the Koran. The answer has to be found in the concrete examples provided by the decided cases and the reliance placed in them on generally accepted norms applicable in the context of dealings with settled wealth.121 (emphasis added)

The court had been asked to confirm that the trustees would be free to distribute the capital within the trustees’ discretion. If such a distribution was not clearly unauthorised by precedent, the trustees should have been at liberty to act in accordance with their own reasonable discretion. The feature of the judgment that is most significant for us is the typical way in which the judge operates to seal legal language off from the ‘non-legal’. One can be quite sure that the judge would have admitted guidance from another common law jurisdiction, and might even have heard argument taken from the codes and commentaries of non-common law countries, but his Lordship refused outright to hear non-legal guidance (whether from the Bible or Bentham, Kant or Koran). It is hard to see what qualification the law of another jurisdiction would have over the most respected non-legal literature in a matter such this. Judges respect the opinions of medical 119 G Watt, ‘Giving unto Caesar: Rationality, Reciprocity and Legal Recognition of Religion’ in R O’Dair and A Lewis (eds), Current Legal Issues: Law and Religion (Oxford, Oxford University Press, 2001) 45–64. 120 X v A [2005] EWHC 2706 (Ch); [2006] 1 WLR 741. 121 Ibid at para [43].

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Excursion professionals in legal proceedings,122 but they have forgotten that the authority of philosophers and poets is to be heard and respected too. Not my words, but the words of Thomas Littleton, one of the first great authorities of the English common law (in the original: ‘authoritates philosophorum medicorum et poetarum sunt in causis allegandae et tenendae’).123 Even such welcome talk of collaboration between law and the arts must be received cautiously so as to avoid any false contrast between law and the other literary arts. As judges have forgotten to collaborate with the arts, so they have forgotten that law originates in the arts. Nowadays when judges acknowledge non-legal reasons for rules, the reasons are usually based on economic efficiency or the maximisation of wealth. Reasons based on humane philosophy, theology and the arts are generally overlooked. The rules against perpetuities illustrate the point. These rules are designed to move wealth from one absolute owner to another absolute owner without being held up ‘in trust’ for too long in the meantime. Numerous economic explanations have been advanced for the existence of such rules – including the need to ensure that wealth can participate freely in the market and the supposed need to restrain the aggrandisement of private persons through the storing up of wealth.124 If these arguments are convincing, why have they not been applied to restrict the longevity of corporations? The truth is that such economic arguments are generally repeated uncritically.125 In the meantime, at least one argument based on theological grounds has been entirely forgotten. This is the argument based on the parable of the rich man who stored his wealth in barns.126 The rules of perpetuity were originally concerned, at least in part, to prevent the storing up of wealth because such behaviour denies divine providence.127 I am not arguing that parables provide a sound basis for making rules,128 but for the sake of a more

122 See eg, In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147(CA), where conjoined twin girls born to devout Roman Catholic parents were surgically separated against their parents’ wishes. For a critical response see MQ Bratton and SB Chetwynd, ‘One into two will not go: conceptualising conjoined twins’ (2004) 30 Journal of Medical Ethics 279–85. 123 Sir Edward Coke, Commentary on Littleton (1628) 264a. 124 Economic suspicion of perpetuitous donations probably stems in large part from the fear expressed by Sir Francis North, that if perpetuities were permitted, ‘all men being desirous to continue their estates in their families would settle their estates by way of trust; which…would be destructive to the commonwealth’ (The Duke of Norfolk’s Case (1682) 1 Vern 162 at 163). 125 Law Commission, ‘The Rules against Perpetuities and. Excessive Accumulations’ (Law Com No 251, 1998) does acknowledge that the economic arguments for perpetuities (as opposed to the ‘social’ reasons) have never been proved (para [1.09]). 126 ‘The Parable of the Rich Fool’ (Luke 12:13–21). 127 The modern rule against remoteness of vesting has its source in principles laid down by Heneage Finch, Lord Chancellor Nottingham in The Duke of Norfolk’s Case (above n 124). The Lord Chancellor relied in that case on two earlier authorities, the principal one being Pells v Brown (1620) Cro Jac 590, in which Dodridge J stated (at 221): ‘quant Deus dedit terras filiis hominis, & si homes poient faire continuance de terre in lour families for ever, ceo fuit a preventer le providence de Dieu’. 128 Lord Atkin’s well-intentioned attempt to translate the parable of the ‘Good Samaritan’ into English law demonstrates how fraught an exercise it is to turn theological ideals into legal rules. His Lordship cited the parable in the course of formulating a tortious duty of care for one’s ‘neighbour’, but whereas the biblical parable (Luke 10.25–37) praised the behaviour of the samaritan who went to

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Law, Humanities and the Humane complete history and a more humane future it is important that we are not carelessly selective with regard to the stories we hear and repeat. It is important to be clear that the call for more humane legal language is not a call for judges to decorate their speech with literary allusions or references to religious scripture. I take issue with the assumptions underlying a recent survey carried out by an academic who searched the leading legal databases for instances of judicial citation of literature129 (specifically, literature from what he calls the ‘law and literature’ canon) and, finding that ‘[l]ess than one-half of one percent of all appellate opinions contains a reference to a work of literature’,130 concluded that the law and literature project (he calls it a ‘Movement’) has by that measure ‘failed to exert sufficient influence on judges to move from an unknowable tacit influence to a citation-rich explicit one’.131 An empiricist mindset has blinded this surveyor to the true aim of law’s engagement with literature, which is not to capture the literature, but to release the law. Leaving aside the surveyor’s problematically narrow definitions of ‘reference’ and ‘literature’, I disagree with the assumption that increased judicial citation of literature would mark the success of law and literature scholarship. It would more likely indicate its failure.132 There is nothing pleasing about judgments gilded with inappropriate and possibly insincere quotations from non-legal literature. The same can be said of florid and periphrastic advocacy. Aristotle forbade rhetoricians from ‘speaking outside the subject’ before the dicasts because he considered it ‘wrong to warp the dicast’s feelings, to arouse him to anger, jealousy or compassion, which would be like making the rule crooked which one intended to use’.133 I would not go so far as to forbid literary allusion, but it would be better to have none than to have it as a mere formal embellishment to speech. We should recall that shallow indulgence of this sort was associated with justice under the emperor Nero, in whom the tutelage of Seneca on the merits of clemency famously and disastrously failed to produce an equitable character. Tacitus records how the people of Rome objected to Nero’s propensity to play the lyre and write poetry; the people asked: ‘[d]oes expert attention to effeminate music and songs contribute to justice, or does it make the knights who serve as judges give better verdicts?’134 Tacitus posits an the aid of a stranger injured by third parties, Lord Atkin’s version allows us to do what the priest and the Levite did in the parable – which is to walk by on the other side. It is interesting that the parable was offered in response to a question – ‘who is my neighbour?’ – that had been posed by a lawyer. 129 M Todd Henderson, ‘Citing Fiction’ (Winter 2008) 11(2) The Green Bag: An Entertaining Journal of Law 171–85. 130 Ibid at 184. 131 Ibid at 185. 132 The fact that Justice Blackmun once quoted Shakespeare’s Timon of Athens (in Brown v Felsen 442 US 127 (1979) at 137, cited by Henderson ibid at 175, fn 9) rather proves the point. James Boyd White has been highly critical of Blackmun’s empiricist and economic mindset (see White, Living Speech, above n 9 at 77–85). 133 Aristotle, The Art of Rhetoric (trans JH Freese) (London and New York, 1926) 1354a, paras [3–5]. 134 Tacitus, The Annals of Imperial Rome xiv 17–21 (trans M Grant 1956) rev edn (London, Penguin, 1996) 323.

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Excursion unconvincing defence in the mouths of Nero’s allies; they ask, ‘why should it be degrading even for a judge to listen with legitimate enjoyment to fine words?’135 Enjoyment is a very welcome aspect of engagement with literature and the arts, and for students it is essential, but enjoyment should not be the primary aim of a judge or jurist when it comes to the business of applying and improving the law. I intend to show that ‘expert attention to…music and songs’ can ‘contribute to justice’ and can help those ‘who serve as judges give better verdicts’, but it will not achieve this by encouraging advocates and judges to indulge in literary allusion.

The Character of Equity For the ancient Greeks the ideal of law was ‘law as steadfast as the throne of Zeus’,136 but this ideal of steadfast law appears to have been appealed to poetically or rhetorically and hardly realised in practice.137 It is true that laws were ‘set in stone’138 – Adriaan Lanni explains that ‘laws were inscribed on large stone blocks (stêlai) erected in various public areas of Athens’139 – but the stones were like unmoving mottos observing the life of Athens and having no means to enter it unbidden. There was little in the way of a system of justice as we know it; nothing we would recognise as judicial concern for factual evidence or due process.140 As the ideal of steadfast law was appealed to poetically and rhetorically, so it was appealed to conveniently. On one occasion a Spartan embassy travelled from Lacedaemon to Athens to seek the repeal of a trade embargo decreed by Pericles. Plutarch records that: Pericles was shielding himself behind the plea that a certain law prevented his taking down the tablet on which the decree was inscribed, Polyalces, one of the ambassadors, cried: ‘Well then, don’t take it down, but turn the tablet to the wall; surely there’s no law preventing that’. Clever as the proposal was, however, not one whit the more did Pericles give in.141 135

Ibid. A line from Agamemnon by Aeschylus. This poetic translation appears as an epigraph to ch 48 of George Eliot’s novel Felix Holt, the Radical (London, William Blackwood & Sons, 1866). 137 Darien Shanske observes that: ‘the Athenians and Aristotle still revere the law’ despite its ‘malleability’ (D Shanske, ‘Revitalizing Aristotle’s Doctrine of Equity’ (2008) 4(3) Law, Culture and the Humanities 352–81, 374). 138 See K Robb, Literacy and Paideia in Ancient Greece (New York, University Press US, 1994) 146–47. 139 A Lanni, Law and Justice in the Courts of Classical Athens (Cambridge, Cambridge University Press, 2006) 37. 140 In the mainstream popular courts, verdicts where handed down by vast public assemblies. To find anything like systematic law one had to look to older specialist courts, such as the ‘homicide courts’ where there were, for instance, rules prohibiting discussion of issues not relevant to the practical matter in hand (see Lanni, ibid, ch 4). 141 ‘The Life of Pericles’ ch 30, in Plutarch, The Parallel Lives (trans B Perrin) vol III Loeb Classical Library edn (1916) 87. 136

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The Character of Equity No one respected strict laws more than the Spartans. A (very) old joke recites that the Spartan lawgiver permitted the alteration of laws only after his death, and only then when he appeared in person to authorise the revision. And yet, the Spartans did, in effect, turn the tablet to face the wall when it suited them to appoint Lysander for an ‘unlawful’ second term as commander of their navy. They achieved this by formally appointing Aracus to the role of admiral, but on the understanding that he would be answerable to Lysander as a matter of fact.142 Where there is will and imagination it is always possible to turn the tablet of the law. In Athens the cultural power of the stêlai must have been significant even if their day-to-day practical influence over litigation was weak. They would have stood as totemic symbols to the Athenian ideal of steadfast law, and must surely have produced the general sense that ‘there is a proper way to do things here’. All the vagaries of Athenian litigation were performed within the cultural parameters set by the stêlai. It was against this culture of formal propriety that the concept of epieikeia emerged in early Greek poetry as a sense of reasonable resistance to the forces of general and formal expectation. The idea of epieikeia appears in the Iliad where Achilles proposes that a prize should be awarded to the charioteer who came last in a race, saying, ‘The best man is coming in last. Let us give him a prize for it is reasonable [epieikes]’.143 Everyone agreed, apart from the one who, having come second in the race, would have received that prize. He ‘stood up and claimed his rights’. Achilles relented, but there had at least been a gesture towards equity. Later, the poet-rhetorician Gorgias (c 487–376 BC) used the concept to describe the civic virtue of soldiers who had fallen in battle: [O]n many occasions they preferred the gentle equitable (to praon epieikes) to the harshly stubborn just (tou authadous dikaiou), and appropriateness of reasoning to the precision of the law.144

This anticipates the concept of epieikeia as Aristotle developed it in The Nichomachean Ethics. For Aristotle it denoted a correction of strict generalities to produce a more pleasing fit with particular circumstances: [W]hile the equitable is just, and is superior to one sort of justice, it is not superior to absolute justice (ou tou haplos), but only to the error (hamarte¯ma) due to its absolute statement (dia to haplos). This is the essential nature of the equitable: it is a rectification (epanortho¯ma) of law where law is defective because of its generality. In fact this is the 142 The episode is referred to by Michel de Montaigne in his Essais (completed 1580). This English translation is by Charles Cotton and edited by William Carew Hazlitt (1877) where it appears in ch 22: ‘Of Custom, And That We Should Not Easily Change A Law Received’. 143 Homer, The Iliad book 23 (trans S Butler) cited in D Shanske, ‘Four Theses: Preliminary To An Appeal To Equity’ (2005) 57 Stanford Law Review 2053, 2056. 144 Gorgias, Epitaphios, fragment Diels-Kranz 82B6 (Hermann Diels and Walther Kranz Die Fragmente der Vorsokratiker) translated into English in K Freeman, Ancilla to Pre-Socratic Philosophers: A Complete Translation of the Fragments in Diels, Fragmente der Vorsokratiker (Oxford, Blackwell, 1948) 130. See also, D’Agostino, Epieikeia. Il tema dell’equità nell’antichità greca, above n 15 at 28–32.

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Excursion reason why things are not all determined by law: it is because there are some cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary. For what is itself indefinite can only be measured by an indefinite standard, like the leaden rule used by Lesbian builders; just as that rule is not rigid but can be bent to the shape of the stone, so a special ordinance is made to fit the circumstances of the case.145

This passage in The Nichomachean Ethics opposes epieikeia to the problem of strict adherence to general law and as such it can also be read as a critique of reliance on the strict letter (routine reading) of laws and as a critique of reliance on formal (thus, in a sense, ‘normal’) rights and rules in the face of demands for more substantial justice. Aristotle’s own tutor had complained that equity is an ‘infraction’ of perfect justice146 so Aristotle’s innovation would have appeared radical. So radical, in fact, that it has been doubted that Aristotle intended for his theory to be applied to the softening of Athenian law in practice. Indeed, there is evidence that on one occasion Aristotle opposed a proposed reform of the simplistic voting procedure exercised by the dicasts in Athenian courts.147 Aristotle’s conservatism with regard to the mainstream of the judicial process should not surprise us. The Nichomachean Ethics was concerned with the practical reform of individual character rather than with reform of the law.148 The opposition of epieikeia to strict law had rhetorical power, but in practice orators displayed ‘a fundamental inhibition against frontal assaults on the authority of law’.149 There is no evidence that Aristotle’s hopes for a civil ethic of epieikeia had any practical moderating effect on the strictness of Athenian law in his lifetime.150 Later, as jurists looked back to Aristotle, they tended to overlook the fact that his legal illustrations of epieikeia were not intended to be read as reports of contemporary legal practice, but rather to illustrate the equitable character which Aristotle considered an ethical aspiration. That Aristotle’s primary concern was to cultivate the equitable character is made express later in chapter ten of book V of Ethics: 145 Aristotle, The Nichomachean Ethics, above n 46 at 6–7; (trans Eden, see Eden, Hermeneutics and the Rhetorical Tradition, above n 16 at 13). 146 Plato, Laws book VI (ed B Jowett): ‘equity and indulgence are infractions of the perfect and strict’. 147 The proposal, made by Hippodamas of Miletus, was that the voting stones used by the dicasts should be replaced by writing tablets in order to enable judgment in less absolute terms. (Pol. 2.5.8 1268b 6–7). See H Meyer-Laurin, Gesetz und Billigkeit im Attischen Prozess (‘Law and Equity in the Attic Trial’) (trans D Nattkemper, ed D Mirhady) pt V: ‘The Principle of Law and Equity in Legal Discourse’ section 4 ‘Timema’ (online supplement to E Carawan (ed), The Attic Orators, Oxford Readings in Classical Studies (Oxford, Oxford University Press, 2007)). See also, C Carey, ‘Nomos in Attic Rhetoric and Oratory’ (1996) 116 Journal of Hellenic Studies 33, 36–37. 148 On this point see Shanske (above n 137) who refers to RA Shiner, ‘Aristotle’s Theory of Equity’ (1994) 27 Loyola of Los Angeles Law Review 1245 and EG Zahnd, ‘The Application of Universal Laws to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law’ (1996) 59 Law and Contemporary Problems 263. 149 Carey, above n 147 at 42. 150 HJ Wolff, Beiträge zur Rechtsgeschichte Altgriechenlands und des Hellenistisch-Römischen Ägypten (Weimar, 1961) 254, fn 15 (cited in H Meyer-Laurin, ‘Law and Equity in the Attic Trial’ in E Carawan (ed), The Attic Orators, above n 147 at 117).

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The Character of Equity It is evident also from this who the equitable man is; the man who chooses and does such acts, and is no stickler for his rights [akribodikaios] in a bad sense but tends to take less than his share though he has the law on his side, is equitable . . .151

Akribodikaios, which Aristotle uses to describe the characteristic of strict insistence on entitlement, shares the same root as akribeias (‘precision’) which Gorgias opposed to epieikeia in the passage quoted earlier. In his Rhetoric, Aristotle went on to expand upon certain features of the equitable character: And it is equitable to pardon human weaknesses, and to look, not to the law but to the legislator; not to the letter of the law but to the intention of the legislator; not to the action itself, but to the moral purpose; not to the part, but to the whole; not to what a man is now, but to what he has been, always or generally; to remember good rather than ill treatment, and benefits received rather than those conferred; to bear injury with patience; to be willing to appeal to the judgement of reason rather than to violence; to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the dicast looks only to the law, and the reason why arbitrators were appointed was that equity might prevail. Let this manner of defining equity suffice.152

This passage is authority for the idea, with which we commenced this chapter, that equity promotes a more holistic way of perceiving people and interpreting laws. Equity looks to the substance beyond the temporary form of law and the temporary formal labels that people bear. The passage also confirms our suspicion that Aristotle did not anticipate the potential for equity to operate as a virtue within the mainstream courts. Aristotle was concerned to cultivate the sort of character that will avoid going to a court of law in the first place. Equity’s association with arbitration is older than its influence on mainstream legal procedure.153 Aristotle anticipated Jesus Christ’s warning to his followers: ‘[s]ettle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way, or he may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison’.154 The writers of the New Testament identified epieikeia, in the sense of gentle forbearance, to be a hallmark of the true Christian, and a characteristic of Christ himself.155 It will be informative at this point to provide a particular example of the equitable character drawn from this author’s own experience. It concerns a close

151

Aristotle, The Nichomachean Ethics, above n 46. Ibid (trans JH Freese). 153 The author who referred to Alternative Dispute Resolution as the ‘new equity’ is well aware that it is really a very old equity. See TO Main, ‘ADR: The New Equity’ (2005) 74 University of Cincinnati Law Review 329–404. 154 Matthew (5:25). 155 In Paul’s second epistle to the Corinthians, for example, Paul writes of ‘the gentleness of Christ’ (eπιeικeιας του χριστου – ‘epieikeias tou christou’) (10:1). The 2006 presidential address to the General Synod of the Church of England by John Sentamu, the Archbishop of York, was entitled ‘Epieikes and Epieikeia: More than justice’ (8 July 2006). As a young man, Dr Sentamu was a lawyer and judge in Uganda. His judicial impartiality led to him being imprisoned by Idi Amin’s regime. 152

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Excursion friend who was admitted to hospital some years ago to have a brain tumour removed by emergency surgery, the tumour having been discovered at a late and life-threatening stage. The day after the operation, when still suffering from severely diminished motor-control, he was handed a cup of boiling-hot tea by a hospital worker (not a qualified nurse, it should be said). The cup was inevitably spilled, and the boiling water scalded his arm – producing a permanent and serious scar. It is difficult to imagine a set of facts that would give rise to a more clear-cut legal claim for damages for personal injury caused by negligence, and perhaps many of us would consider it entirely appropriate to insist on our legal rights in such a case. Perhaps we would even consider that we would be serving the ‘public interest’ by bringing a legal action which might prompt a reform of hospital procedures generally. My friend read the facts differently. He felt that he could not in good conscience sue the hospital today which had saved his life yesterday. To put it in Aristotelian terms, he refused to be a stickler for his rights in a bad sense, but preferred to take less than his share though he had the law on his side. In short, his attitude was exemplary of the equitable character. Contrast this attitude with that of a former chief executive of an English NHS Trust. On Monday 7 April 2008, the online version of the Guardian newspaper carried the following headline: ‘Superbug scandal boss sues trust for bigger payoff ’. According to the article, a former chief executive had commenced legal proceedings to enforce a legal right to substantial severance pay which she claims had been agreed when she resigned from her post. There would be nothing newsworthy in this, were it not for the fact that she had resigned a few days before an independent report attributed the deaths of around ninety patients to a bacterium found to be present in hospitals under her administration. In the section concerning the response of managers, the report concluded that the board had ‘paid insufficient attention to its responsibilities to protect patients against infection’ and ‘had no effective system for surveillance’ of the bacterium.156 This case illustrates the problem of divergence between narrow legal entitlement and wider justice. The health service executive may be legally entitled to her severance pay, but it would surely be unjust on any terms, other than the narrowly legal, for her to claim the severance pay in this particular social and temporal context. The same can be said of executives who receive ‘golden parachutes’ on leaving companies that their mismanagement has helped to destroy.157 The hard part is to identify what can be done about it. There are only three options – the first is to do nothing; the second is to reform the law to prevent unjust assertion of legal rights and entitlements; and the third is to cultivate equitable character in individuals. The last two options are not mutually exclusive. Our best hope of

156 Healthcare Commission, ‘Investigation into Outbreaks of Clostridium Difficile at Maidstone and Tunbridge Wells NHS Trust’ (October 2007) 7–8. 157 I am writing in the midst of the credit crisis of 2008, so examples are plentiful. An article in The Daily Telegraph on 7 March 2008 (online http://www.telegraph.co.uk/) notes, for example, that one executive left the financial services firm Merrill Lynch with $161m in stocks and options.

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The Character of Equity cultivating the equitable character lies in education, and it is to that hope that the present study is primarily directed. It is a difficult task to reform the law, but even this might be achieved not only by traditional legal methodologies, but by reforming the culture of jurists (judges, practitioners and academics) from one which seeks to close the door between the law and other worlds of wisdom to one which sees the necessity of conversation with those other worlds and is always open to the possibility of external influence. My approach is not idealistic, but hopeful and pragmatic. Christopher St German considered equity to be an exception ‘from the general Rules of the Law of Man’ arising from ‘the Law of God, or of the Law of Reason…when they by reason of their generality would in any particular case judge against the Law of God or the Law of Reason’.158 St German’s equivocation between the ‘Law of God’ and the ‘Law of Reason’ rather proves the point that equity does not depend on movement towards an ideal. Equity is not the destination, but the dynamic – movement from the worst extremes is motive enough. There is no need for idealism. To vary the metaphor, we can say that a person dying of thirst should rather drink from a puddle than hold out for a pond. This is not to say that the action of equity is opposed to the ideal. Equity is always compromising, but it compromises in a way which tends to make the law better because it closes the gap between the rigid law and the variable contours of life. Something of this contingent ‘idealism’ is captured in Nigel Simmonds’ metaphor of fitting a new kitchen, which he employs to explain the art of judgment.159 Simmonds observes that when a kitchen-fitter finds that the ideal design does not fit the particular space, the kitchen-fitter adapts the design but in doing so departs from the ideal. In contrast, when a judge finds that the general law does not fit a particular case and adapts the law, this entails a movement closer to the ideal. Thus, the ideal of equitable judgment is not to adhere strictly to the original design, but to adapt. The source for this distinction between craft and judgment is, as Simmonds acknowledges, Hans-Georg Gadamer’s, Truth and Method.160 The metaphor was employed to explain Aristotle’s moral philosophy, but it also serves very well to explain Aristotle’s idea of epieikeia. Lawyers should not fear the contingent nature of equity and the equitable. Even in the English law of property, where we expect the legal idea of equity to be most clearly defined, the House of Lords admits that ‘equitable interest’ is a concept ‘of most uncertain content’, that there is ‘nothing exhaustive about the expression’ and that it ‘has no clear boundaries’.161 The relevant statute defines it in negative and residual terms as being those ‘Estates, interests, and charges in or over land which are not legal estates’.162 Their 158 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England etc (London, Treverys, 1530) (revised reprint, London, Atkins, 1687) ch 16. 159 N Simmonds, Law as a Moral Idea (Oxford, Oxford University Press, 2007) 147–48. 160 Hans-Georg Gadamer, Truth and Method (1960) (trans J Weinsheimer and DG Marshall) 2nd rev edn (London, Continuum Books, 2004) 315. 161 Shiloh Spinners Ltd v Harding [1973] AC 691 at 720–21 (Lord Wilberforce). 162 Law of Property Act 1925 s 1(8).

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Excursion Lordships say this is ‘a tautology rather than a definition’. It is no definition, but neither is it a tautology; it is simply an acknowledgement that juridical equity is never defined in the abstract, but always defined in contrast to the general law. Some commentators refuse to accept that the law ought to have any prerogative dimension. The Marxist literary critic Terry Eagleton has written that ‘for law to be law its decrees must be general and impartial, quite independent of and indifferent to any concrete situation’.163 This leads Eagleton to side with Shylock in Shakespeare’s The Merchant of Venice. There are many reasons for siding with Shylock – we can sympathise with the conditions which brought Shylock to rely so stubbornly on the law, it is even possible (however unlikely) that Shylock would not have gone through with the actual taking of Antonio’s flesh164 – but it would be wholly wrong to approve of stubborn insistence on a strict legal right to kill. The one absolutely indefensible aspect of Shylock’s character is his resort to absolute reliance on the law. Both of Shakespeare’s classic ‘law’ plays – The Merchant of Venice and Measure for Measure – can be read as critiques of akribodikaios in the characters of Shylock and Angelo respectively. We have already cited the moment in Measure for Measure when Angelo seeks to legitimate the killing of Claudio and in so doing sacrifices his personal humanity to the letter of the law: ‘It is the law, not I’ (2.3.80), he says. Shylock says, in similar vein: ‘I stand here for law’ (4.1.144). We should stand for the law by all means, but we should not stand for akribodikaios. We have observed that Plato considered equity to be an infraction of perfect justice, but even though Plato did not see the capacity of epieikeia to close the equity gap between strict law and perfect justice, he saw very clearly that the gap exists. In his Statesman, Plato’s stranger advises the young Socrates that the law does not perfectly comprehend what is noblest and most just for all and therefore cannot enforce what is best. The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. And no art whatsoever can lay down a rule which will last for all time.165

In short: ‘A perfectly simple principle can never be applied to a state of things which is the reverse of simple’.166 The poet Samuel Daniel expressed the essence of this with impressive efficiency and elegance when he wrote: ‘no Proportion can there be betwixt / Our Actions, which in endless Motion are, /And th’ Ordinances, which are always fixt’. That line appears in Daniel’s epistle to Sir Thomas Egerton.167 In the same work, Daniel wrote the line: ‘Ten Thousand Laws more 163 T Eagleton, William Shakespeare (Oxford, Blackwell, 1986) 36–37. Quoted in Posner, Law and Literature, above n 111 at 119. 164 See eg, A Shütz, ‘Shylock as a Politician’ in P Raffield and G Watt, Shakespeare and the Law (Oxford, Hart Publishing, 2008) 271–87, 276–79. 165 Statesman in The Dialogues of Plato (trans B Jowett) (Oxford, Clarendon Press, 1892) vol II, 294b2-c4. 166 Ibid. 167 Samuel Daniel, To Sir Thomas Egerton, Knight: Lord Keeper of The Great Seale of England (1603) stanza 18. The Poetical Works of Mr Samuel Daniel etc (in two volumes) vol II (London, R. Gosling et

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The Character of Equity cannot reach so far, But Malice goes beyond’. His intention was to indicate law’s inability to anticipate every nuance of human cunning, but even if a perfect code could be created which anticipated every type of wrong (and right) it would still be a mistake to apply the law rigidly. Malice would still have the capacity to ‘go beyond’ by turning the very rigidity of the law into an instrument of abuse. The more unbending the law, the more it resembles a stiff staff with which the cunning may beat the foolish, the trusting and the innocent. No matter how much one might wish to restrict the role of equity in law, it cannot be denied that it must at least restrain calculated abuse of the rigidity and inadequacy of the general formalities and rules of law. Sir John Trevor MR made this point when he opined that the ‘Office of Equity’ is ‘to support and protect the Common Law from Shifts and crafty Contrivances against the Justice of the Law. Equity therefore does not destroy the Law, nor create it, but assists it’.168 Equity in English law is directed to remedy the peculiarly ‘legal’ wrong of abusing formally legitimate powers, rights and entitlements – and the related wrong of taking advantage of the absence of, and inadequacies of, formally legitimate powers, rights and entitlements. The name that English law applies to such unjust abuse of law is ‘unconscionability’. The word indicates conduct that is inconsistent with ‘conscience’, and this word indicates that the wrong lies in the fact that the conduct was carried out ‘with knowledge’ (con scientia) of particular facts which make the conduct unjust in the circumstances. Consider the case of someone who needs a house, but cannot afford to buy land. A landowner, who has spare land, says ‘Why don’t you build the bungalow on my land? If you do, I promise that you can live in it for the rest of your life’. If the promisee builds the bungalow in reliance on the informal promise, should the promisor then be permitted to evict the promisee on the basis that the builder lacks formal legal title to the land and has no formal contract to acquire title? No, he should not. The statutes governing such a case require the promisee to produce formal documentation to prove an interest in land,169 but ‘equity protects him so that an injustice may not be perpetrated’.170 There is nothing wrong with the rule which requires compliance with formalities for the transfer of interests in land, but if the rule is inflexibly applied, the rule itself may become the very instrument of harm. In English law, equity is quite radical when it comes to setting aside strict law in cases where the strictness of the law is turned unconscionably into the very

al, 1718) 342, 345. We will see in future chapters that Sir Thomas Egerton held the office of Lord Chancellor, as Lord Ellesmere, during the period in which the Court of Chancery achieved jurisdictional precedence over the courts of common law. 168 Dudley v Dudley (1705) Prec Ch 241, at 244 (Lord Cowper). 169 This is the law in all cases since 1990 as a result of the Law of Property (Miscellaneous Provisions) Act 1989 s 2. 170 Inwards v Baker [1965] 2 QB 29 at 38 (Dankwerts LJ). This was a case involving facts similar to our scenario with the bungalow, but in the real case the father died and trustees of the father’s estate sought to evict his son – proving that the so-called equitable ‘trust’ often compels the trustees to act against good conscience. I return to this point in ch 3 at 104.

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Excursion instrument of abuse. Not even Acts of Parliament are spared, as the maxim puts it: ‘equity will not permit a statute to be used as an instrument of fraud’.171 This maxim is applied in cases, such as the case of the bungalow just mentioned, where a documentary formality required by statute in the interests of preventing fraud is used, instead, to perpetrate fraud; hence equity intervenes to uphold the spirit of the statute against its letter. In fact, formalities statutes usually include provisions expressly designed to permit equitable intervention of this sort. An example can be found in the statute governing formalities for the creation of trusts of land. A section of the statute provides that a declaration of a trust of land must be evidenced in writing,172 but a subsequent provision states that: ‘This section does not affect the creation or operation of resulting, implied or constructive trusts’.173 Another statute provides that a contract for the sale of land must be made by signed writing, but again makes an express exception for ‘constructive trusts’.174 The standard rule of statutory interpretation, expressio unius exclusio alterius, determines that an express list of exceptions precludes the implication of further exceptions, but judges have not been willing to restrict equity’s intervention to the formal statutory lists of exceptions or to inhibit equity’s intervention by reference to the standard rule of statutory interpretation.175 Courts have, for example, been quite willing to downplay doctrinal differences between proprietary estoppel and constructive trust (in other words to subject the statutory reference to ‘constructive trust’ to an equitable interpretation) in order to admit proprietary estoppel as an exception to the formalities relating to the creation of trusts of land176 and contracts for land.177 Cases like these demonstrate that divergence between strict entitlement and justice – what I have called the ‘equity gap’ – is sometimes closed by granting a potential claimant a right of action where none exists in general law. Is this a different species of equity from the one which restrains an existing general right to bring legal action? It is not. The two types of case involve the same essential equity, but

171 A radical, and little known, variation on the theme of the maxim is the possibility that equity might prevent an unconscionable use of the power to apply to Parliament for the enactment of a new private statute. The possibility was acknowledged in Re London, Chatham and Dover Railway Arrangement Act (1869) LR 5 Ch App 671. The Court thought it difficult to conceive of a case in which it would ever be appropriate for equity to intervene in this way. 172 Law of Property Act 1925 s 53(1)(b). 173 Ibid, s 53(2). 174 Law of Property (Miscellaneous Provisions) Act 1989 s 2. Equitable intervention was anticipated by the Law Commissioners who proposed the statute (see Law Commission, ‘Transfer of Land: Formalities for Contracts of Sale’ etc (Law Com No 164, 1987) paras 5.4–5.5). 175 Karl Llewellyn doubted that ‘canons’ of construction are ever reliable (see K Llewellyn, ‘Remarks on the Theory of Appellate Decisions and the Rules or Canons About How Statutes are to be Construed’ (1950) 3 Vanderbilt Law Review 395). 176 In the House of Lords in Lloyds Bank v Rosset [1991] 1 AC 107, Lord Bridge of Harwich stated (at 130) that the requirement of writing in s 53(1) Law of Property Act 1925 would not apply if Mrs Rosset had been able to show an enforceable interest in her favour arising ‘by way either of a constructive trust or of a proprietary estoppel’ (emphasis added). 177 Yaxley v Gotts [2000] Ch 162 (CA).

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The Character of Equity viewed from different perspectives. In the latter situation, the defendant is restrained – or restrains himself – from unconscionably asserting a right or entitlement under strict law. In the former situation (where an equitable right is granted – as in the case of the builder and the bungalow), it is granted to restrain the defendant from unconscionably denying that the claimant has a right or entitlement under strict law. The Human Rights Act 1998 represents a welcome return, in relevant contexts, to the hermeneutical tradition of reading the ‘equity of a statute’, but this statute is not a panacea and like all statutes it has limited aims. The very fact that it promotes a discourse founded on rights and entitlement disqualifies it from acting to replace the general culture of entitlement with a culture of equity. In the case of the poorly performing chief executive, for example, the Human Rights Act 1998 is powerless to prevent the executive from recovering severance pay from their former employer. In fact it is bound to operate the other way by positively protecting the executive’s private entitlement to money against the state’s desire that that it should be withheld. One cannot legislate for a culture of equity. For that we must look to the judiciary and to ourselves, for we are all judges of a sort. We should pause to contemplate Lord Hewart’s opinion, even if it nowadays seems old-fashioned, that ‘the real progress of humanity probably depends far more on the conception of duty than on the conception of rights’.178 The problem comes when we try to agree on a definition of juridical duty, but we can perhaps agree that our first juridical duty is not to turn legitimate rights and powers into instruments of abuse. According to equitable discourse, the rule is not the law; it is merely, as Bacon wrote, ‘the magnetic needle’ which ‘points to the law’.179 Bacon supposed that the needle of the rule points to a magnetic pole of perfect law – a natural law. John Locke suggested a similar contrast between the rule of living according to ‘natural right’ and the ‘rule of living according to nature’.180 My own view is that we do not need to believe in a fixed perfect law of nature to believe that we should look beyond the strict letter of right and rule. Strict insistence on the letter of general laws can be shown to be abusive in particular cases without knowing what the perfect version of the rule should look like. One does not need to know how a perfect dog should behave to know that we must stop this dog from biting that leg. The juridical doctrine of unconscionability is enough to prevent the harm even if it is insufficient to ground an ideal system of rights and duties. I am echoing Bacon, who said that conscience acts ‘sufficiently to check the vice, but not to inform the

178 G Hewart, ‘Law, Ethics, and Legislation’ ch 3 in Essays and Observations (London, Cassell, 1930) 58. 179 Francis Bacon, The Advancement Of Learning (1605) Aphorism 85 in The Works of Francis Bacon etc vol VII (London, M. Jones, 1815) 282. 180 John Locke, Essays on the Law of Nature, ch I (ed W von Leyden); John Locke: Essays on the Law of Nature and Associated Writings (Oxford, Clarendon Press, 1954) (2007 reprint) 111.

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Excursion duty’.181 It does, of course, help to know what an abuse is. Clearly it is not per se unconscionable to rely on a general legal entitlement. Whether it is unconscionable or not depends on the circumstances of each case or, where substantially similar cases recur, the common circumstances of each species of case. In every context ‘it is essential to be clear on what, in this context, unconscionable means’.182 In one context it might mean ‘using a legal formality to trick someone’ in another context it might mean ‘taking advantage of a vulnerable person’. The same dog bites differently according to the shape of the leg. This makes the intervention of equity somewhat unpredictable but I will argue in chapter three that we can allow equity a degree of licence to intervene case-by-case to prevent unconscionability because we can establish outer-limits to how far it can stray.

Multiple Meanings of Equity The word ‘equity’ is used in a wide variety of contexts with meanings which vary from one context to another. Often it is used to denote social justice, especially in the form of fair opportunity to access essential resources such as food, water, healthcare, education and employment. A similar sense of equity as fair opportunity probably explains why some actors’ trade unions take ‘Equity’ for their name. Equity in the sense of equality of opportunity and greater equality of resources is often used to describe the aspiration to ‘have’ or to ‘have more’ by those who ‘have not’ or ‘have less’. Equity in the Aristotelian sense of epieikeia might be sought to correct the normal distribution of wealth where it causes harm in particular cases, but it does not aim for simple equality. Equity will no more support unjust insistence on strict equality than unjust insistence on an unequal status quo. At the other end of the range of meanings of ‘equity’, the word is used by those who ‘have’ to describe the things they own – including corporate shares and the wealth they have in mortgaged assets. A cursory pass through any internet search engine will reveal that the idea of equity as wealth is nowadays the dominant sense of the word. The word ‘equity’ is even used in the game of poker to describe the share which each player expects that he or she should receive from the money at stake, all background risks being equal – which I suppose aptly combines the dimensions of ‘having’ and ‘not having’. In an article in the Stanford Law Review, Darien Shanske observes that there is no ‘single true concept of equity’183 and proceeds to catalogue a score of different connotations of the word. It is an impressive survey, but the shading between some of the ‘distinct’ usages in his catalogue is very fine and Shanske acknowledges that most of them 181 ‘Of Revealed Religion’ (reproduced in Basil Montagu Esq, The Works of Francis Bacon etc in three volumes vol I (Philadelphia, A Hart, 1852) 240). 182 Royal Brunei Airlines v Tan [1995] 3 WLR 64, at 76B–D (Lord Nicholls). 183 D Shanske, ‘Four Theses: Preliminary To An Appeal To Equity’ (2005) 57 Stanford Law Review 2053, especially pt IV thesis 3: ‘There Is No Unified Concept of Equity’ (2068ff).

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Multiple Meanings of Equity are ultimately traceable back to Aristotle’s idea. Often the same sense of equity shines on different grounds and casts different shadows only because the ground varies, but Shanske is right to suspect that across the whole spectrum of usage, the various formal meanings of the word do not correspond to an identical underlying sense. Perhaps diversity, to the extent that it exists, is itself an indicator of a singular truth of equity – that it resists conformity. Shanske says something similar in the concluding line of his article, where he writes that ‘[g]rappling with the complexities of the tradition…is a key part of the thing itself and should be a sine qua non of an appeal to equity’.184 Ultimately, all one can do is to take as the starting point the meaning that one finds most meaningful – a preferred meaning – and to explore from there. I start with the idea of equity in English law because it is the meaning I am most familiar with, but it has a number of objective qualifications to be our starting point. For one thing, there can be little doubt that, throughout the long international history of the idea of equity, it is in the jurisprudence of the English Court of Chancery (and the similar courts it has given rise to in other jurisdictions) that the idea of equity as a way of reading beyond the letter and correcting formal error has received closest scrutiny – it is here that most minds have dissected this idea of equity, and with the sharpest intellectual tools. Equity in English law is also attractive as a starting point because its operation, indeed its very presence, in English law remains (as it almost always has been) highly controversial.185 Equity in English law has also enjoyed a long-standing dialogue with literature. The idea entered the law from literature beyond the law and the idea continually returns to literature beyond the law. Mark Fortier’s study of The Culture of Equity in Early Modern England concludes with the lamentation that equity ‘is no longer a topic for the imagination’, that ‘[t]he equity that dominates the late capitalist imagination…is equity as wealth’ and that ‘[e]quity has lost its poetry’.186 It is true that economic language has embraced the idea of equity almost to the point of suffocating it, but it is within our power to loosen its grip. Everywhere one looks nowadays one sees economic language losing its grip on reality, so the task of releasing true equity will not be an impossible one. To repeat what I said at the outset, my aim in writing this book is to reassert equity’s power to provide an ethic for imagining better law and better life. This is an aim that will be achieved in part by discovering the poetic nature of equity’s ongoing operation in modern law. It is no doubt a somewhat hopeful project, but equity is always associated with hope. The word ‘equity’ is used by the ‘haves’ and the ‘have nots’ in quite different ways, but always to denote something they hope to attain or retain. Whether approached from a religious or secular perspective, whether approached from a starting point of poverty or privilege, equity is universally considered to be something desirable, something to aspire to. Such consensus 184 185 186

Ibid at 2085. The historical controversies are examined in chs 2 and 3. Above n 87 at 186.

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Excursion with regard to any concept is rare. Even if conceptions differ, there is approval for the word. Equity therefore has the potential to provide a language capable of traversing or filling some fundamental fissures in modern society. Equity is an ambiguous word, but so far as possible I will seek to avoid the ambiguity of the concept by continually focusing on the meaning of equity that I have in mind, which is an equity akin to Aristotle’s epieikeia. What I cannot hope to achieve, and do not desire to achieve, is to remove the ‘wandering’ from the word; this is its necessary ‘vagueness’.187 Timothy AO Endicott has defined a ‘vague’ word as a word that has a single meaning even though ‘its application is unclear in some cases’.188 He warns that ‘we should expect no good explanatory account of when it is correct to apply a vague expression’.189 What I will offer, instead of an ‘explanatory account’ of equity, is a cultural, artistic and literary appreciation. This will provide an elucidatory account in general and an explanatory account in particular places. One thing it can attempt to explain is the nature of the difference between equity and other vague words – such as ‘charity’ and ‘mercy’. Even if we picture equity as a wandering cloud, we must acknowledge that in every picture of clouds one cloud is always to some extent distinct from its neighbour. Equity is sometimes confused with ideas of charity and mercy. There is a degree of coincidence between the concept of equity and the concepts of charity and mercy, but they are not identical. Equity coincides with charity when the equitable restrains strict entitlement for oneself (taking less than one’s share) and equity overlaps with mercy when the equitable restrains strict enforcement against others. Despite this overlap, there is a distinction in ethos between equity and charity. Equity restrains formal entitlement out of a sense of what is due to another on account of particular circumstances (including circumstances of birth and behaviour) which relate that other to the party strictly entitled. Charity might be prompted by a general sense of what is due to another, but it does not depend on such a particular sense of that other’s ‘due’. The saying ‘charity begins at home’, is therefore misleading. If, for example, one voluntarily distributes a lottery windfall within one’s own family, one is acting in a sense equitably, but not charitably. ‘Equitable’, rather than ‘charitable’ is how I would characterise the behaviour of Jane Eyre in Charlotte Brontë’s eponymous novel, when Jane unexpectedly inherits twenty thousand pounds and resolves to divide it four ways with her three cousins. She says: ‘It would please and benefit me to have five thousand pounds; it would torment and oppress me to have twenty thousand; which, moreover, could never be mine in justice, though it might in law’.190 Her cousin, the clergyman St John Rivers, objects to her generous gesture:

187

Latin: vagus (‘wandering’). TAO Endicott, Vagueness in Law (Oxford, Oxford University Press, 2000) 54. 189 Ibid at 53. 190 Charlotte Brontë (under the pseudonym Currer Bell), Jane Eyre: An Autobiography (London, Smith, Elder and Co, 1847) vol III ch 33. 188

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Multiple Meanings of Equity I do see a certain justice; but it is contrary to all custom. Besides, the entire fortune is your right: my uncle gained it by his own efforts; he was free to leave it to whom he would: he left it to you. After all, justice permits you to keep it: you may, with a clear conscience, consider it absolutely your own.191

What is this ‘certain justice’ that St John perceives, even though it is contrary to normal legal entitlement? Surely it is what Aristotle refers to as the ‘character of equity’. For Jane it came to her in the form of intuition – ‘fully as much a matter of feeling as of conscience’, but the feeling was undoubtedly a sense that she ought to divide her windfall and thereby do equity. She even uses the word: ‘my cousins saw at length that my mind was really and immutably fixed on making a just division of the property – as they must in their own hearts have felt the equity of the intention’.192 Her happiness lay more in the unexpected discovery that she had cousins than in the unexpected monetary windfall, and this is why she insisted on a new equitable law in the face of her legal and customary entitlement. The reason why it is not charitable to distribute a windfall among members of one’s own family (and I am not referring to ‘charitable’ in its legal sense), lies in the simple fact that one is connected to one’s own family members by a particular relationship which cannot be said to subsist between oneself and the public at large. The particular relationship between members of a family is enough to create a particular sense of ‘due to them’ and ‘due from you’ that differs from the general sense of ‘due to the homeless in my city’ or ‘due to the needy in Africa’ which prompts one to charity. Compared with the connection between equity and charity, the overlap between equity and mercy is at first sight much harder to prize apart – especially when one’s starting point is the idea of equity in English law. The mainstream of equity in English law has flowed through the Court of Chancery and that court has its source, as we will see in chapter two, in the royal prerogative of mercy. There is, nevertheless, a clear distinction between equity and mercy. The distinction is that an exercise of mercy never depends on a sense of what is due to the beneficiary of the mercy. One acts equitably because one ‘ought’ so to act. In contrast, one does not exercise mercy because one ought to: ‘the quality of mercy is not strained’.193 It is in some respects easier to know what equity is not, than to know what equity is. Equity is not partisan. John Maidstone once wrote a letter containing a summary of the American civil war which James Russell Lowell described as being the best that he had ever read, observing that ‘[t]here is a singular equity

191

Ibid. Ibid. There is a witty reversal of this sense of familial equity in Jane Austen’s Mansfield Park (1814) where Julia Bertram considers that she has a right to Mr Crawford because her sister Maria is already engaged: ‘Miss Bertram’s engagement made him in equity the property of Julia, of which Julia was fully aware’ (ch 5). 193 William Shakespeare, The Merchant of Venice (4.1.184). 192

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Excursion and absence of party passion in it which gives us faith in the author’s judgment’.194 The effects of equity will never be apolitical – a paradox of politics is that one hits it the moment one aims away from it – but the ethos of equity at least avoids taking political sides in a partisan way. In the literary search for equity there should be, as always in the study of law and literature, ‘No Manifesto’.195 Equity is not utilitarian. Utilitarianism is exactly opposed to equitable modes of thought. Like all economic languages ‘it imagines life in an impoverished way’.196 However well intentioned it may be, utilitarianism depends on a pernicious mathematics of mankind. Whereas equity looks to particular differences beyond the norm, the basic building block of utilitarianism is a presumed standard type of person devoid of individual difference. Utilitarianism is flawed in logic as well as in ethic. We should not seek to maximise happiness for the greatest number so long as some are happiest when they do evil and some are more easily pleased than others. In a system governed by utilitarian pursuit of the greatest happiness for the greatest number, ‘[t]he pleasure-wizard’s superior efficiency in producing utility would pull income away from the less efficient cripple’.197 Dickens’ portrayal of Sir Thomas Gradgrind in Hard Times, who refers to children by number instead of name (or names them with a name of his choosing), is widely considered to be a satire on Jeremy Bentham. Storey notes that Dickens harboured a ‘hatred of Bentham’s doctrine of utility and its social and economic consequences’.198 Herman Melville hated it too.199 His unfinished novella Billy Budd, published posthumously in 1924, is a study of the horrors that attend insistence on the strict letter of the law, or, to be more accurate, strict insistence on a particular reading of the letter of the law.200 It cannot be denied that Bentham did a great deal to promote equality, between men and women, between different races (he was an ardent abolitionist), even between human and beast, but equality without equity is a strict equality in which living creatures are equal units devoid of individual differences, devoid of a life story and therefore devoid of so much that gives meaning to life. Bentham’s great error was to

194 JR Lowell, The Writings of James Russell Lowell (Boston, Houghton, Mifflin and Co, 1890) vol II, 36. On equitable impartiality see further chapter 6 at 222. 195 White, ‘Law and Literature’, above n 74 at 739. 196 White, Living Speech, above n 9 at 85. See also, by the same author, Justice as Translation (Chicago, University of Chicago Press, 1990) ch 3. 197 A Sen, ‘Equality of What’ in SM McMurrin (ed), The Tanner Lectures on Human Values 1 (Cambridge, Cambridge University Press, 1980) 195–220. 198 G Storey, Charles Dickens: Bleak House, Landmarks of World Literature (Cambridge, Cambridge University Press, 1987) 12. 199 H Parker, Herman Melville: A Biography vol I (Baltimore and London, JHU Press, 1996) 68–69. 200 See H Hayford and MM Sealts Jr (eds), Billy Budd, Sailor: An Inside Narrative – The Definitive Text (Chicago, University of Chicago Press, 1962) considered in RH Weisberg, The Failure of the Word: The Lawyer as Protagonist in Modern Fiction (New Haven, Yale University Press, 1989) especially chs 8 and 9 (this edition expanded from the 1984 original). I consider Melville’s short story, Bartleby (1853) in the final chapter of this book.

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Multiple Meanings of Equity suppose that equality could only be achieved by stripping away the stories.201 I agree with the celebrated legal historian, Sir William S Holdsworth (who I will claim was as an early scholar of law and literature)202 when he wrote that Bentham looked at the law ‘analytically and therefore superficially’.203 It is true, as Allen observes, that ‘in the process of time most of our rules of law have shaped themselves as justice and utility demand’, but he acknowledges that ‘in the past, the conscious striving after principles of natural fairness has played a supremely important part in legal development’ and that ‘If medieval doctrines in this kind were vague and mystical, yet they contemplated an ideal with which the world cannot yet dispense’.204 It is because we should not cease to strive for something (I do not call it an ideal) beyond the law that I have written this book. It is because we cannot dispense with equity that in 1952 Lord Denning delivered a lecture declaring ‘The Need for New Equity’.205 That lecture ended with the question: ‘Where is the new equity to be found?’ to which Lord Denning responded: ‘It is, I think, to be found in the new spirit which is alive in our universities’.206 If we ask the same question today, we will give the same answer. Except today, the new spirit within our universities is a spirit that will make our law schools open to the wider university, and especially to the humanities’ disciplines. In the same lecture, Lord Denning went on to say that ‘[t]here must rise up another Bentham to expose the fallacies and failings of the past and to point the way to a new age and a new equity’.207 Today the need for a new Bentham is a need for a ‘Bentham’, or for ‘Benthams’, who are ‘new’ in the sense of ‘different from the old Bentham’. If the first Bentham exposed the danger of a certain kind of fiction in law, the new ‘Benthams’ should expose the danger of ousting law’s stories in favour of the gross fiction that law is a self-sufficient natural, empirical or doctrinal science. Lord Denning did not see it, or chose not to say it because he was speaking at University College London (founded by followers of Bentham), but the reason we must search for a new equity is down in large part to the fact that Benthamite reasoning is killing off the old one. Bentham’s form (containing his skeleton) remains on display at University College London. He was a paragon for his time, but it is time he was laid to rest.

201

CK Ogden, Bentham’s Theory or Fictions (London, Kegan Paul, 1932). On account of such contributions as his book Charles Dickens as a Legal Historian (New Haven, Yale, 1928) and his lecture ‘Literature in Law Books’, which was first delivered to the Faculty of Law at the University of Birmingham on 18 November 1938 and is reproduced in Goodhart and Hanbury (eds), Essays in Law and History, above n 47 at 219–37. One can also discern in Holdsworth’s writing a genuine fondness for the humane story of the past. 203 ‘Case Law’ in Goodhart and Hanbury (eds), ibid 147 at 160; originally published at (1934) 50 Law Quarterly Review 180. 204 Law in the Making, above n 25 at 305. 205 A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1. 206 Ibid at 10. 207 Ibid. 202

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Excursion

Education Lord Denning’s observation that ‘the new equity’ is ‘to be found in the new spirit which is alive in our universities’ is a clue to the essentially educational nature of equity. Hopefully the spirit of the new equity is alive in our universities, but the ultimate aim of education is that it should journey beyond the university walls into society at large. This aim can be achieved by many practical means, but none better than the enthusiasm of individual students. Some disciplines find it difficult to journey even a little way beyond the confines of their own departmental walls. The law school is especially slow to imagine the law from the perspectives of other humanities’ disciplines and the liberal arts. It ‘remains far more like a divinity school – devoted to the preservation of the faith – than a department of religion – which studies various religions from multiple perspectives’.208 In so far as the present study aims to lead lawyers to explore new territories beyond their standard texts it is, at heart, an educational study. True education entails ‘leading out’ (Latin: ex ducere). True education is inevitably eccentric. The alternative to education is inculcation, which is the process of treading the same ground – literally ‘digging ones heels in’ (from the Latin calx, meaning ‘heel’). There are, though, certain dangers associated with eccentricity to which we should be alert. The first is a cynical and hyper-critical attitude towards the central consensus against which one’s eccentricity is defined. It is a foolish flower that mocks the earth it springs from. This alerts us to a second danger: the danger of becoming a ‘movement’. The label ‘movement’ is so often attached to a thing at the point it stops moving. A butterfly pinned down is a butterfly dead. Law and literature should not be, and cannot be, definitively labelled. We can, however, be confident in some of the things that it can do: it can better educate students; it can cultivate a better ethic in the legal professional and it can encourage a more sincere speech and more sympathetic judicial style. We will see that it can even provide answers to pressing doctrinal questions in the law. Related to the danger of being labelled a movement, is the danger of seeking central status for law and literature. Status is by definition static. Balkin and Levinson write that ‘although “humanists” however defined, may be welcomed into the company of professional legal scholars, they are welcomed with the understanding that the humanities are not central to the legal academy’s future’.209 That will suffice. Interdisciplinary approaches to law are by definition eccentric, but this is their educational strength. The cutting edge is always on the outside. It is pleasing that some legal scholars are willing in most of their work to look at law from literary perspectives and it is to be hoped that all legal scholars will be willing in some of their work to look at law from the perspective of at least one humanities discipline, but it is neither desirable nor realistic to expect that we will ever reach a situation in 208 JM Balkin and S Levinson, ‘Law and the Humanities: An Uneasy Relationship’ (2006) 18 Yale Journal of Law and the Humanities, 155, 161–62. 209 Ibid at 177.

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Education which most legal scholars devote most of their efforts to looking at law from the perspectives of humanities and the liberal arts. Many of the most beautiful gardens comprise a large lawn of plain grass, with the flowers left to the borders. The crucial point is that law and literature should be allowed some ground in which to grow, and that it should grow freely enough to place something beautiful within the reach or sight of every law student and jurist. One important practical consequence of a literary approach to law is that it will broaden the range of texts that lawyers and law students read. In America, law is a postgraduate discipline – which means that American lawyers have all studied in fields other than law, and often those fields are literary fields, broadly defined. Even in England, where the law degree is usually an undergraduate degree, the corpus of practising lawyers includes a significant group drawn from graduates of disciplines other than law.210 This fact is indicative, perhaps, of employers’ recognition that a broader-based education makes for happier and more humane employees – and better lawyers. At the very least it indicates that law schools in the jurisdiction of England and Wales can include a broader range of disciplinary texts and perspectives without undermining their essential, even their practical, ‘lawyerliness’. It has been said that a legal education ‘sharpens the mind by narrowing it’.211 What is desired is a range of reading that will tend to broaden the mind. The novelist Sir Walter Scott, who was a Scottish barrister, writes in Guy Mannering of a visit made by the eponymous colonel to the lawyer Pleydell whose office was ‘surrounded with books, the best editions of the best authors, and, in particular, an admirable collection of classics’. Pleydell refers to them as the tools of his trade, adding that ‘[a] lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect’.212 Pleydell’s sentiment is echoed in Judge Learned Hand’s lecture on ‘Sources of Tolerance’, where he said: I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon, and Carlyle, with Homer, Dante, Shakespeare and Milton,

210 See Danny Lee, ‘The advantages of a non-law degree’ The Times (23 May 2006) (online http://www.timesonline.co.uk/). This article indicates that around one-fifth of entrants into legal practice have a non-law undergraduate degree, although it does not indicate what proportion studied humanities disciplines. One firm declares, with a hint of surprise, that it even has a music graduate. 211 Edmund Burke (who gave up the law early on in his career in favour of (other) literary work). OW Holmes wrote: ‘one heard Burke saying that the law sharpens the mind by narrowing it. One heard in Thackery of a lawyer bending all the powers of a great mind to a mean profession’. Holmes responds to these criticisms by saying that ‘law is human – it is a part of man, and of one world with the rest’: Holmes, Collected Legal Papers, above n 68 at 164–65. 212 Sir Walter Scott, Guy Mannering or The Astrologer (1815) this quotation is from the Collins Classics edition (London, Collins, 1955) ch 37, at 253.

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Excursion with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the Subject.213

The benefits of the arts and humanities to a legal education, even at the earliest stages, are emphasised in a letter sent in 1954 by Justice Frankfurter in reply to a boy who had asked for advice on how to prepare for a career in law: The best way to prepare for the law is to come to the study of law as a well-read person. Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings…and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible of the wonderful mysteries of the universe, and forget all about your future career.214

There has never been a better time to read widely. The internet has produced a revolution in information technology that is every bit as innovative as the invention of the printing press. Old texts have been made more readily accessible to new readers, and the reader in one discipline has been liberated to tour the online libraries of neighbouring disciplines and disciplines quite alien. We should hope and expect that we are on the cusp of an interdisciplinary renaissance to rival that which the mechanism of moveable type brought about in the late Middle Ages. Of course, whether a wider range of reading will actually broaden the mind depends entirely on the attitude or ethos with which one reads – to some degree it takes a mind that is already broad in order to read in an equitable way. It is how we come to the text that matters. James Boyd White writes that ‘[w]e are responsible for the ways in which we attune ourselves to what we read, for how we judge it, and or who we become in relation to it’.215 Richard A Posner is less hopeful. He asserts that ‘[i]mmersion in literature does not make us better citizens or better people’.216 This is only true where the reader is hermetically sealed in his or her own watertight world. If the reader sees the respective limits of law and literature and exercises willingness to engage one with the other, there is every reason to expect that we can make better citizens and better people, including better lawyers. To turn Posner’s assertion on its head, we can be sure that immersion in the law – especially law that is complacent about its isolation from the arts and humanities – will make us worse citizens and worse people. In fact, it turns out that Posner’s attitude is not as cynical as the quotation suggests.

213 Judge Learned Hand, ‘Address to the Juristic Society at the University of Pennsylvania Law School’ (1930) reproduced in I Dilliard, The Sprit of Liberty: Papers and Addresses of Learned Hand (New York, Alfred A Knopf Inc, 1952) 81. 214 Reproduced in L Blom-Cooper, ‘Judges Among the Literati’ (Oxford, Margaret Howard Memorial Lecture, 2001) 9. 215 ‘Law and Literature’, above n 74 at 739, 746. 216 RA Posner, ‘Against Ethical Criticism’ (1997) 21(1) Philosophy and Literature 1–27 at 1.

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Education Elsewhere he approves the capacity of literature to shed light on the idea of equity when he acknowledges that ‘[n]o civilized society has ever embraced the legalistic position in undiluted form. Every such society softens the rigors of strict legalism’. This softening process, he continues, ‘is not inconsistent with the idea of law; it is the idea of law – as literature can help us see’.217 ‘Law and literature’ can help us to see many things. It can help us to see what law is and what law is not. It shows us what law is capable of and what its limits are. It helps us better to understand what law should and should not become. It helps us to read better, write better, speak better, represent more fully and to judge less. It is easy to forget that ‘law is not logically essential to the administration of justice’;218 to forget that the law provides just one among many stories of justice. If the law story is to convince us, it must include the character of equity. Without equity, the law’s story becomes all rules and no justice. As John Gardner has written: [N]ot only does the fact that legal systems are systems of rules fail to explain why they ought to be just; the fact that they ought to be just tells against legal systems being too true to their ruly natures.219

We will discover that somewhere between law and literature there is a pleasing story of justice in which the character of equity mediates the unruly nature of life with the too ruly nature of law.

217

Law and Literature, above n 111 at 121. R Pound, ‘Justice according to Law’ (December 1913) 13(8) Columbia Law Review 696–713. 219 J Gardner, ‘The Virtue of Justice and the Character of Law’ in MDA Freeman (ed), Current Legal Problems 2000: Volume 53 (Oxford, Oxford University Press, 2000) 1, 18. 218

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2 In Chancery Mr Gridley ‘Do you know anything of Courts of Equity?’ John Jarndyce ‘Perhaps I do, to my sorrow.’ Charles Dickens, Bleak House

I

N CHAPTER ONE we saw that the equitable ethos is one that encourages reading beyond the letter of the law. I argued that the ethos of law and literature is equitable in that sense, and also because it encourages reading beyond the literature of law. In this chapter we will see that legal and non-legal literatures have been bound together since the earliest days of chancery. We will scrutinise the processes by which languages of equity external to the law came to be captured in the English Court of Chancery, and what became of them there. There will be several revelations along the way, including three which I will introduce briefly now. The first is the discovery that the very name of ‘chancery’ implies imprisonment; a fact that will appear painfully ironic when we come to scrutinise the legal and literary connections that have been drawn between incarceration and the Court of Chancery. The second discovery is that the language of Shakespeare’s Measure for Measure probably inspired the opening line of the order made in 1616 by which King James I confirmed the jurisdictional supremacy of equity over law in cases of conflict between them. The third discovery is that Dickens, the former lawyer’s clerk, may have found the name of the terrible chancery case Jarndyce and Jarndyce in the work of two other former lawyers, the Brothers Grimm. The jurisprudential distinction between equity and law does not depend for principled justification on the jurisdictional divide between the chancery and common law courts. This is just as well, given the essentially fortuitous nature of the historical events which led to the establishment and pre-eminence of the Court of Chancery. Few jurists have objected more strongly than William Blackstone to the jurisdictional division between chancery and common law and to the consequent isolation of equity from the common law courts, but this was not because he considered the distinction between equity and law to be meaningless. On the contrary, he considered that the interpretation of laws in every court should always take two forms: the literal or strict and the substantial or equitable: 47

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In Chancery Equity then, in its true and genuine meaning, is the soul and spirit of all law: positive law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule…there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity.1

Equity Captured in Chancery In the early Middle Ages the English chancery was, as elsewhere in Europe, the department of scribes responsible for producing the paperwork of government (in fact it was parchment or vellum work).2 The name ‘chancery’ derives from the chancellor, who was the presiding official. In England, the chancellor was custodian of the Great Seal, and it was under this seal that writs and other legal forms were issued out of chancery. As a high-ranking member of the king’s court the chancellor attended on the king even during frequent itinerant periods of his reign. Up until the Reformation, the chancellor was invariably a senior churchman, so in addition to consulting the chancellor on matters of legal form, the king also sought his counsel with regard to the righteousness of the king’s law and the chancellor came to be known as the ‘keeper of the king’s conscience’.3 Medieval feudal hierarchy, and the king’s place at the top of it, depended on the king himself to look up to God to secure the safety of the realm and the justice of his reign. Henry II was England’s greatest lawmaker of the Norman and Angevin era, and it was an Archbishop of Canterbury in his reign – the civil lawyer Thomas Becket – who ‘made the Chancery into an office which set the law of the Church as the standard for the king’s conscience’.4 This ‘meddlesome priest’ kept the king’s conscience rather too assiduously, and his fate is well known.5 It is not clear at what point conscience and equity were officially identified with each other, but ‘if any distinction was originally recognized as to the respective import of the terms Equity and Conscience, they soon became confounded’.6 Even before Magna Carta, we find that through its just process and opposition to the iniquity of law, the office of the chancellor is closely, although not expressly, aligned with 1 William Blackstone, Commentaries on the Laws of England (in four volumes) 1st edn (Oxford, Clarendon Press, 1765–69) book III ch 27, 429–30. 2 The vellum documents were stored in rolls called volumina, from which we get our word ‘volume’ and in which Dickens might have found inspiration for the name of Volumnia Dedlock of Bleak House. 3 For an argument that this title was not firmly established until as late as the reign of James I see DEC Yale, Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge, Cambridge University Press, 1965) Introduction xxxix; discussed in J Williams, ‘James I, Equity and Lord Keeper’ (July 1976) 91 (360) The English Historical Review 506–28, 514. 4 TAO Endicott, ‘The Conscience of the King: Christopher St. German, Thomas More, and the Development of English Equity’ (1989) 47 University of Toronto Faculty of Law Review 549, 552. 5 As recounted, for instance, in TS Eliot’s play, Murder in the Cathedral (1935). 6 G Spence, The Equitable Jurisdiction of The Court of Chancery (in two volumes) vol I pt II (Philadelphia, Lea and Blanchard, 1846) 413.

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Equity Captured in Chancery equity. The following lines appear in the entheticus minor, which prefaced John of Salisbury’s Policraticus (1159). They were written in reference to Lord Chancellor Becket7: ‘Hic est, qui regni leges cancellat iniquas, Et mandata pii principis aequa facit’.8 Concern for equity and concern for conscience were practically inseparable by the second half of the fifteenth century, hence a writ addressed by Edward IV to Robert Kirkeham, Master of the Rolls,9 stated that the king willed and commanded ‘that all manere of maters to be examyned and discussed in the Court of Chancery, shuld be directed and determined accordyng to equite and conscience’.10 Cardinal Wolsey, who was the last ecclesiastic Lord Chancellor of England, once wrote to a judge with this advice on how to keep the king’s conscience: [W]hen ye tell him this is the law, it were well done ye should tell him also that although this be the law, yet this is conscience; for law without conscience is not meet to be given to a King by his counsel…for every counsellor to a King ought to have a respect to conscience before the rigour of the law.11

The advice is sound even though it was occasioned in a futile attempt by Wolsey to prevent Henry VIII from appropriating Wolsey’s grand London home, York Place.12 During the reign of Elizabeth I, Edward Coke was vociferous in his campaign to reduce the chancellor’s influence in legal matters, but he did not doubt the need for some legal supervision of the king’s conscience. On the first page of the second part of his Institutes of the Laws of England, Coke praised Magna Carta for its ‘excellent Laws . . .which tend to the honour of God, the safety of the King’s conscience, the advancement of the Church, and amendment of the Kingdome’. It was established by The Provisions of Oxford (1258) that the chancellor had no authority to issue novel writs out of chancery ‘without the order of the King and of the councillors who are present’13 and even though the Statute of

7 John of Salisbury’s Entheticus Maior and Minor (ed Jan van Laarhoven) vol II (Leiden, Brill, 1987) 233. Becket’s principal biographer William Fitz Stephen used the same lines and Nigel de Wetekre borrowed them for his panegyric to William de Longchampe, Bishop of Ely and chancellor to Richard I. 8 ‘Here is he who cancels the inequity of the laws of the kingdom / and justly enforces the mandates of a pious prince’. On the connection between the chancellor and cancellation see below n 48. 9 The senior master in chancery. Originally his function was to keep the court rolls (see above n 2) in safe custody. Until the Constitutional Reform Act 2005 only the Lord Chancellor and the Lord Chief Justice were above the Master of Rolls in the judicial hierarchy. 10 Rot Claus, 7 Edw IV m 12 dors (cited in CP Cooper, An Account of the Most Important Public Records of Great Britain etc (London, Baldwin and Cradock, 1832) vol I, 455). Holdsworth cites an even earlier example (1468) in which the chancellor was expressly associated with equity (WS Holdsworth, History of English Law (London, Methuen, 1966) vol I, 406). 11 The letter to the judge Sir William Shelly is reproduced in SH Cassan, The Lives of the Bishops of Winchester (in two vols) (London, C & J Rivington, 1827) vol I, 397. 12 G Howard, Wolsey, the Cardinal, and His Times: Courtly, Political, and Ecclesiastical (London, Sherwood, Jones and Co, 1824) 481–82. 13 HG Richardson and GO Sayles, ‘The Provisions of Oxford: a Forgotten Document and some Comments’ (1933) 17 Bulletin of the John Rylands Library 291–321.

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In Chancery Westminster II (1285)14 allowed new writs to be framed in chancery in consimili casu (by analogy to) established forms, it effectively closed the door on genuine creativity and the existing list of forms was practically fixed and final. This tendency towards common form was of huge benefit to the standardisation of the English language (it has been said that ‘[t]he genealogy of modern Standard English goes back to Chancery, not Chaucer’)15 but it was a mixed blessing for the law. With greater rigid conformity came an increased need for just exceptions in particular cases, so petitions to the chancellor became routine in the late thirteenth and early fourteenth centuries as a way of escaping the rigidity of the common forms of writ. The Leges Henrici Primi (c 1100–35) had confirmed the prerogatives of the English king to deal with ‘unjust judgment’ and ‘default of justice’.16 The chancellor’s jurisdiction to admit exceptions to standard form was a natural extension of this royal prerogative of ‘grace’ or ‘mercy’ to grant special relief in particular cases. We know for certain that the Lord Chancellor’s judicial office came to an end in 2006 as a result of the Constitutional Reform Act 2005, and is now vested in the Vice-Chancellor who has been renamed ‘Chancellor of the High Court’, but when the chancellor first presided over a distinct court is not so clear. In 1601, a number of senior judges expressed the view that ‘the Court of Equity in Chancery, was founded on ancient prescription time out of mind’.17 The Roman praetors, who had jurisdiction in England during the period of Roman occupation (from 43 AD to around 409–25 AD), exercised a jurisdiction in some small but significant respects similar to that later exercised by the chancellor. For example, where a man died with no heir according to the strict terms of the civil law, the praetor could nevertheless allow his widow to take possession of his goods against anyone who had dispossessed her.18 The point was that she had no legal right to possess, but that the dispossessor had no better right, so the widow should have a remedy to resist the naked force of dispossession. The praetor’s jurisdiction to create ius honorarium to ‘aid, supplement or correct’19 the civil law is an historical precedent for English equity, but it cannot sensibly be described as the antecedent from which the English Court of Chancery was actually developed.

14

13 Edw 1 c.24. D Crystal, The Cambridge Encyclopedia of the English Language (Cambridge, Cambridge University Press, 1995) 41. For detail, see JH Fisher, ‘Chancery and the Emergence of Standard Written English in the Fifteenth Century’ (1977) 52(4) Speculum 870; M Richardson, ‘Henry V, the English Chancery, and Chancery English’ (1980) 55(4) Speculum 726. 16 Leges Henrici Primi 10.1 (trans and ed LJ Downer) (Oxford, Oxford University Press, 1972) 108. Parkes suggests that the prerogative was exercised in the reign of Alfred the Great (871–99) (J Parkes, A History of the Court of Chancery etc (London, Longman, Rees, Orme, Brown, and Green, 1828) 15). 17 WJ Jones, The Elizabethan Court of Chancery (Oxford, Clarendon Press, 1967) 492. 18 HF Jolowicz, Historical Introduction to the Study of Roman Law (Cambridge, Cambridge University Press, 1954) 97. 19 Digest I.I.7.I (cited in Jolowicz, ibid at 98, fn 1). The phrase is attributed to Papinian. 15

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Equity Captured in Chancery It is not possible to state precisely when the foundations of the medieval equity Court of Chancery were completed, but we know when some significant foundation stones were laid. George Spence, the author of a respected history of the chancery jurisdiction, identifies the twenty-second year of the reign of Edward III (1327–77) as the likely date on which the King formally delegated to his Chancellor his ‘prerogative of grace’ to deal with ‘cases which required Extraordinary remedies’, for it was on 23 January 1349 that the King issued a proclamation in the following terms: To the sherrifs of London. Order to cause proclamation to be made that the king wishes the affairs concerning the common law of England and his special favour to be sued henceforth, those of the common law before the elect of Canterbury, the chancellor, and those concerning the king’s favour before the said chancellor or keeper of the privy seal so that they may send things which cannot be done without consulting the king together with the advices thereon, to the king so that after inspection he may signify his will to them as he is much occupied upon divers affairs touching him and the state of the realm.20

The ‘divers affairs’ which were occupying the King had been brought about by the the ‘Black Death’. The outbreak of plague in 1348 remains the worst single outbreak that England has ever known, and the plague continued to spread across England throughout the whole of 1349. We know that this produced vacant (and therefore disputed) land and that it accelerated the culture of landholding from the traditional feudal method towards contract (leasehold).21 As well as providing a significant moment in the general shift from status to contract, this produced the perfect environment for disputes to fester with regard to leases and feudal tenures and this is precisely the sort of environment in which the King’s prerogative jurisdiction to deal with ‘extraordinary remedies’ is most necessary. The chancellor must have been kept busy, for by the end of the century the parliamentary authority of the chancellor’s distinct jurisdiction was firmly established. Spence records that in the fifteenth year of the reign of Richard II (1377–99) two petitions were sent to chancery, which were answered in the following terms: This petition is sent to the Chancery, and the Chancellor, by authority of Parliament, is to cause the parties to come to him in the said Chancery, and there having diligently seen and examined into the matters comprised in the petition, and heard the reasons on one side and the other, let there be done by authority of Parliament that which justice and reason, and good faith, and good conscience require in the case.22

20

Calendar of the Close Rolls 1346–349. Spence, above n 6 at 337. M McKisack, The Oxford History of England: The Fourteenth Century (Oxford, Clarendon Press, 1959) 333–34; P Ziegler, The Black Death (London, Collins, 1969) 239. 22 Rot Parl iii 297, 298. Spence, above n 6 at 407. 21

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In Chancery It seems that Palmer is justified when he writes that ‘[t]he development of chancery adjudication had its roots in the consequences of the Black Death’.23 Dickens, who in Bleak House used the word ‘pestilent’ to describe the nineteenthcentury High Court of Chancery, would have appreciated the irony. Oliver Wendell Holmes observes that by the end of the reign of Henry V (1413–22), ‘the Court of Chancery was one of the established courts of the realm’.24 It was, though, established along ecclesiastical lines. It conducted ‘Examination and oath of the parties according to the form of the civil law and the law of Holy Church in subversion of the common law’.25 Penny Tucker notes that in the first half of the fifteenth century, petitioners to chancery in London were very often seeking bail to avoid imprisonment.26 This is ironic given that the London court later came to be associated with the literal and figurative imprisonment of parties in chancery matters. In fact, even at this early date, the chancellor practised the imprisonment of parties who failed to comply with his injunctions. In one case, a plaintiff subject to a chancery injunction restraining him from pursuing a common law action proceeded despite the threat of being imprisoned by the chancellor. The judge hearing the common law action summed up the stark separation between the two jurisdictions when he said ‘We here are bound by the law, and cannot go beyond…and if the party will lie in prison rather than give up the obligation, the other is without remedy’.27 Shakespeare dramatised the chancellor’s role as keeper of the king’s conscience in a number of places, one of which is the dialogue between King Henry V and the Archbishop of Canterbury at the start of The Life of King Henry V. (Henry V reigned from 1413 to 1422, so the play was set in the early years of the chancellor’s distinct jurisdiction.) The King asks the Archbishop to clarify the legality of his proposed invasion of France. Performing the Lord Chancellor’s role,28 Canterbury explains, through detailed documentary technicalities, that there is no legal bar to Henry’s claim. It is at this point, after the letter of the law has been read, that the King asks the crucial question: ‘May I with right and conscience make this claim?’ (1.2.98).29 Legal right is insufficient justification for the King; he demands to be satisfied in conscience also. The invasion went ahead,

23 RC Palmer, English Law in the Age of the Black Death, 1348–1381: A Transformation of Governance and Law (Chapel Hill, University of North Carolina Press, 1993) 108. 24 OW Holmes, ‘Early English Equity’ (1885) 1 Law Quarterly Review 162. 25 Rot Parl 84; 3 Hen V pt 2 46, No 23 (cited in Holmes, ibid at 162, fn 1). 26 P Tucker ‘The Early History of the Court of Chancery: A Comparative Study’ (2000) 115 English Historical Review 791, 800–01. 27 JR v MP (1459) Year Book 37 Henry 6 fol.13 pl.3, Court of Common Pleas (Chief Justice Prisot). 28 This occurred on many occasions historically. Indeed, when Henry V came to the throne, the same man (Thomas Arundel) was Archbishop of Canterbury and Lord Chancellor before Henry very swiftly replaced him as Chancellor with his uncle Henry Beaufort. 29 All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated.

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Equity Captured in Chancery so we may doubt that the question of conscience was sincerely posed or sincerely answered, but when the historical Henry V asked the same question with regard to more mundane matters, mostly concerning entitlement to land within the realm, the question was asked with all apparent sincerity. Palgrave in his ‘History On The Council’ provides the example of a writ issued by Henry V to his chancellor, the Bishop of Durham, by which the King required the chancellor to call the parties to a petition before him to hear their arguments and to ‘do unto them both right and equity, and in especial that you see that the poorer party suffer no wrong’.30 Another example is provided by a 1418 petition to the chancellor under the seal of Henry V concerning a Bristol merchant named Mark William. It illustrates what has been said about chancery’s independence from the common law forms of writ and its reliance on documentary statements of evidence: [As] you may have more plain knowledge by the said supplication. So we require that you see the said supplication, and if the matter contained therein ought to be examined by our council that be done and thereupon you should ordain that Right be done as Lawe and conscience require; that there be no more complaint nor pursuit made unto us on this side of the see touching that matter.31

Another example in the reign of Henry V stresses how deeply questions of legal title to land impinged upon the King’s conscience: [For] as much as we have a manner of doubt whether [William] Kynwolmersh occupy clearly and without scruple the hospital of saint Antony by our gift or not, for to eschew the peril in conscience that might be unto us by the giving and to him (by) the receiving of the said hospital, that god defend, unless the title where clear in law and conscience.32

One wonders if those who propose invasions of foreign territories in our own time play out a scene like the one Shakespeare dramatised in connection with Henry’s invasion of France. A great deal of reliance was placed on the strict letter of various United Nations Security Council Resolutions to lend legitimacy to the 2003 invasion of Iraq,33 but was there any attempt to test the letter of the law against the demands of conscience? No doubt the individuals concerned tested the matter in the court of their own conscience, and this is a start (Immanuel

30 Francis Palgrave, An Essay Upon the Original Authority of the King’s Council (printed by command of His Majesty King William IV, 1834) 77, cited in Spence, above n 6 at 407. 31 On 23 October 1418 (calendared Kirby 849. Recognisance recorded 16 February 1419, CPR 1413–19 at 524). From, An Anthology of Chancery English compiled by JH Fisher, M Richardson, JL Fisher (Knoxville, University of Tennessee Press, 1984) 106–07. Accessed online via the Middle English Collection of the Electronic Text Center at the University of Virginia. (The layout and spelling of this extract has been modernised in places in the interest of clarity.) 32 The Grant of deanery to Kynwolmersh, 1 July 1419 (calendared Kirby 867 CPR 1416–22) Fisher et al, ibid at 218. (The layout and spelling of this extract has been modernised in places in the interest of clarity.) 33 Especially UN Security Council Resolution 660 (2 August 1990) UN Doc S/RES 660; UN Security Council Resolution 678 (29 November 1990) UN Doc S/RES 678 and UN Security Council Resolution 1441 (8 November 2002) UN Doc S/RES 1441.

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In Chancery Bourne called conscience ‘the Lord-Keeper, the Chancellor . . . who keepeth a Chancery in the soule of man’)34 but where is institutional conscientious restraint to be found? It is revealing that when the Chancery Bar Association of England and Wales responded to the government’s 2003 consultation paper, Reforming the Office of the Lord Chancellor,35 it acknowledged that the Lord Chancellor ‘can still be regarded as the Keeper of the Royal Conscience’ but that he does not hold any separately identifiable function as Keeper of the Royal Conscience, and there is no necessity formally to vest that title in the Vice-Chancellor who will be the senior judge of the Chancery Division when the office of Lord Chancellor is abolished.36

England has divested itself of its conscience. International law has some (highly contingent and highly compromised) capacity to restrain abuses by nation states, but within the nation there is no effective institutional process of appeal to conscience comparable to that which Henry V had available to him. There is not so much as a licensed fool to irritate the power of state, such as King Lear had available to him.37 Even the Old Testament kings had prophets who practised equity in the mode of spiritual and satirical critique of the kings’ authority.38 The ex officio inclusion of religious leaders in the upper house of the UK Parliament is virtually the last vestige of institutionalised non-routine, non-legal, consciencebased irritation of the power of the state.39 They should perhaps be joined by professional satirists to perform the role of licensed fools, for equity has something in common with a virtuous brand of folly.40 Nowadays the task of conscientious critique of legal power has largely been left to journalism, media and the arts. In the United Kingdom, the satirical periodical Private Eye has been at the vanguard of this enterprise since 1961, and has been rewarded with

34 The Anatomie of Conscience (London, 1623) 11 quoted in DR Klinck, ‘Lord Nottingham and the Conscience of Equity’ (2006) 67(1) Journal of the History of Ideas 123–47 at 126–27, fn 18. 35 Department for Constitutional Affairs, Constitutional Reform: Reforming the Office of the Lord Chancellor CP 13/03 (November 2003). 36 Ibid para [19]. 37 Later in this chapter and in ch 6 we will see that Lear’s fool is identified with equity. 38 PG Monateri, ‘The Prophetic Nature of Equity’ in D Carpi (ed), The Concept of Equity (Heidelberg, Universitätsverlag Winter, 2007) 69–82. Citing P Goodrich, ‘Satirical Legal Studies: From the Legists to the Lizard’ (2004) 103 Michigan Law Review 397ff. 39 William Perkins observed that: ‘Divines must take lawyers advice, concerning Extremitie and the letter of the law: good reason then that lawyers take the Divines advice, touching Equitie which is the intent of the law’. (Treatise on Christian Equity and Moderation in The Workes of That Famous and Worthy Minister of Christ, in the University of Cambridge M. William Perkins (London, 1613), STC 19647, II, 441). 40 The present book is published on the five-hundredth anniversary of Erasmus’ epistle ‘The Praise of Folly’ written to his friend Thomas More (Desiderius Erasmus, Moriae Encomium, 1509) in which Erasmus noted, playfully, that More’s name is resonant with the Greek µωρι´α (moria, meaning ‘folly’). Sir Thomas More is, of course, most famous for having ‘foolishly’ irritated the conscience of King Henry VIII to such an extent that the King felt obliged to have him executed. Robert Bolt’s play A Man For All Seasons (1960) provides a touching humane account of the history.

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Equity Captured in Chancery innumerable lawsuits and threats of litigation. Arguably it should be given a fool’s licence to write with impunity. The state with no fool makes a fool of itself. In the early fifteenth century the chancellor’s court enjoyed a degree of popularity as a forum in which the powerless could seek redress against the powerful and it came to be known as a ‘court of conscience’,41 but even at that time the expense associated with the central Court of Chancery in London was a source of complaint. (Courts of conscience of less exalted status – including provincial courts, mayoral courts and merchant courts – remained popular longer.)42 There is literary evidence in the reign of Henry VI to show that the Court of Chancery was been run along professional lines and was already starting to display the problems associated with professional monopoly. The following verses appear in John Lydgate’s The London Lackpenny (c 1452),43 a poetic complaint written from the perspective of a man who was unable to pursue chancery proceedings for lack of funds: Unto the Rolls I gat me from thence, Before the clerks of the Chancery; Where many I found earning of pence; But none at all once regarded me. I gave them my plaint upon my knee; They liked it well when they had it read; But, lacking money, I could not be sped.

Lydgate’s complaint was directed at the costs of the central Court of Chancery rather than any delay. In later centuries the suggestion that justice might have been ‘“sped” in Chancery’ would have solicited an incredulous response. Costs and delay in the Court of Chancery combine together to form the legal backdrop to the greatest study of chancery in the whole of English literature – Charles Dickens’ Bleak House. The novel can be read in many ways – it is a ghost story in the gothic genre and it can claim to be the English prototype for the murder detective novel44 – but for us it is a contemporary critique of the law and lawyers of chancery and, most significantly, a profound engagement with the problem of formal law and the hope that can be found in the character of equity. In chapter five, I will demonstrate that the heroine of Bleak House, Esther Summerson, embodies that hope; but for now we are still ‘in chancery’. 41 JH Baker, An Introduction to English Legal History 3rd edn (London, Butterworths, 1990) 118, fn 24, citing 10 SS 121. For a more detailed discussion, see P Tucker, Law Courts and Lawyers in the City of London 1300–1550 (Cambridge, Cambridge University Press, 2006) (207–10 deals with ‘“In Conscience” and Merchant Law Cases’). 42 Margot Finn and Peter Goodrich have produced fine studies of these courts that are sensitive to their literary and cultural contexts: MC Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge, Cambridge University Press, 2003) ch 5; P Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London and New York, Routledge, 1996). 43 The poem is reproduced in full in WHO Smeaton (ed), English Satires (London, 1899). 44 It is the first English novel in which a police detective follows clues forensically with a view to solving, among other things, a murder mystery. The first masterpiece of the detective genre by an English author was The Moonstone (1868) written by Dickens’ friend Wilkie Collins.

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In Chancery Dickens wrote Bleak House at a time when reform of the Court of Chancery was already well underway. The novel was not intended to be a manual for law reform – as we know, Dickens acknowledged in the preface that he has ‘dwelt upon the romantic side of familiar things’. The book was not all romantic, though. Dickens added high-grade fuel to the existing fire of chancery law reform (conflagration was how Dickens fantasised the final destruction of the Court of Chancery by setting fire to his analogue Court of Chancery: Krook’s ‘Rag and Bottle Warehouse’). In this enterprise Dickens had accidentally aligned himself with the founder of modern utilitarianism, Jeremy Bentham − whose attitude and approach was, as we have seen, quite unromantic and quite opposite to (and opposed by) Dickens − for Bentham was Dickens’ predecessor and partner in the task of reforming the Court of Chancery. As Goodhart notes, Bentham became a law reformer ‘because he noticed that a litigant was being charged for three audiences before a Master in Chancery when only one was required’.45 ‘In Chancery’ is the title of the first chapter of Bleak House. Dickens could not have chosen more appropriate opening words. To begin with, it is an acknowledgment of the external formality of legal documentation. ‘In Chancery’ are the first words one would have read on virtually every legal document issued out of, and connected to, that court in the middle of the nineteenth century. Dickens is historically accurate when he writes that ‘the copying-clerk in the Six Clerks’ Office…has copied his tens of thousands of Chancery folio-pages under that eternal heading’ (1). Beyond the form, there is something more substantial and more sinister. We know that the word ‘chancery’ derives from ‘chancellor’. It can now be revealed that the word chancellor is derived from cancellarius, the Roman scribe and official who sat just within the lattice-work barrier (cancellus) that separated the judges from the people in the Roman tribunal court.46 To be ‘in Chancery’ is therefore to be behind bars – indeed the phrase ‘in Chancery’ is the etymological twin of the word ‘incarcerate’; the former from the Latin root ‘cancer’, the latter from the variant Latin root ‘carcer’ – both meaning bars or crossed bars.47 This original etymological sense of chancery is employed by William Lambarde in his Archeion (1591) where he says that the etymology indicates that the chancellor metaphorically contains matters ‘within certaine barres and limits’ (original emphasis).48 He adds that the Chancellor ‘doth (when

45 AL Goodhart, ‘English Contributions to the Philosophy of Law’ (1948) 48(5) Columbia Law Review 671–88 at 684. 46 C Costantini observes that ‘[t]he name of the office is able to mark the physical and political boundaries of the juridical sphere as an inviolate kingdom which confers a distinctive sovereignty’ ‘Equity Breaking Out: Politics as Justice’ (2008) 1 Pólemos 9–20. 47 And sharing some more ancient connection with words denoting the hard outer barrier that encloses crustaceans, as in the greek karkinos (‘crab’) and the sanskrit karkatah (‘crab’) and karkarah (‘hard’). 48 W Lambarde, Archeion, or, A discourse upon the high courts of justice in England (1591) (revised 1598, published 1635) (London, printed by E P[urslowe] for Henry Seile, dwelling at the Tygers-head in St Paul’s Church-yard, 1635) 46. (Lambarde also suggests a connection to the cancellation of documents by cross-marking with the scribe’s pen.)

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Equity Captured in Chancery the case requireth) so cancell and shut up the rigour of the generall Law, that it shall not breake forth to the hurt of some one singular Case and person’ (my emphasis).49 The etymological identity of ‘in chancery’ and ‘incarceration’ has apparently been overlooked until now, and even for Dickens it might have remained subconscious, but the novel clangs with echoes of the prison door.50 Consider, for example, the final paragraph of the first chapter, ‘In Chancery’: The Chancellor is about to bow to the bar when the prisoner is presented. Nothing can possibly come of the prisoner’s conglomeration but his being sent back to prison… (emphasis added)

The prisoner in question is the so-called ‘man from Shropshire’, but the scene is intended to foreshadow the incarceration of Richard Carstone who along with his cousin (and lover) Ada Clare is a ‘ward in chancery’. (There were ‘wards’ – corridors of cells – in Victorian prisons too.) Richard and Ada share the forlorn hope of becoming rich through their interest in the chancery case of Jarndyce and Jarndyce which all stems from the disputed will of a ‘certain’ Mr Jarndyce. Dickens is never accidental in his choice of names and here he is very precise.51 Richard connotes ‘right hard’ or ‘hard ruler’ (from the Proto-Germanic) and Carstone compounds ‘in – carcer – ation’ with comfortless ‘stone’. (Shakespeare uses the same metaphor to describe another victim of ‘judicial process’ when in The Winter’s Tale, he sets Hermione ‘[s]tanding like stone’ (5.3.48) as a statue before her husband, who had been her judge.) It is Richard’s fate to be imprisoned within, and to die behind, the bars of the chancery case. Dickens parallels Richard’s plight with the image of a caged bird. The parallel commences when old Miss Flite takes Richard and his companions to her garret room. We are told that there are ‘a number of bird-cages hanging there, some containing several birds’ (5). The picture is hauntingly reminiscent of the Grimms’ fairy tale in which the boy Jorindel seeks to rescue his lover Jorinda from a witch who has turned her into a bird and imprisoned her in a cage. Having overcome the witch’s magic, which had fixed him ‘as a stone’;52 at last ‘he came to the chamber’ where there were ‘seven hundred birds singing in the seven hundred cages’.53 ‘Jarndyce’ is obviously a pun on the sickness and attitude of jaundice, but why did Dickens choose Jarndyce instead of ‘Billus’ or ‘Tummris’ or ‘Sumpson’ or any number of alternative allusions to disease? In the search for the origins of the name Jarndyce and Jarndyce I suggest that we need look no further than the title of the fairy tale 49

Ibid at 46–47. For a perspective on the association between Bleak House and incarceration which is very different from mine, see D Polloczek, ‘Aporias of retribution and questions of responsibility: the legacy of incarceration in Dickens’ Bleak House’ ch 4 in Literature and Legal Discourse: Equity and Ethics from Sterne to Conrad (Cambridge, Cambridge University Press, 1999). 51 J Hillis Miller notes that Dickens ‘seems to remain in that realm of fiction where names truly correspond to the essence of what they name’ (‘Introduction’ to Charles Dickens, Bleak House (Harmondsworth, Penguin English Classics, 1971) 23). 52 Grimms’ Fairy Tales (1823) (London, Penguin, 1996) 62–65, 63. 53 Ibid at 64. 50

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In Chancery Jorinda and Jorindel.54 Dickens even talks of witchcraft at work in Jarndyce and Jarndyce. He tells us that the fortune of the will has been spent on ‘an infernal country-dance of costs and fees and nonsense and corruption as was never dreamed of in the wildest visions of a witch’s Sabbath’ (8) and it all originates in the ‘evil hour’ (a ‘witching’ hour or ‘devil’s dancing hour’ is implied) in which the disputed will was made. Jorinda and Jorindel was first published in England in an 1823 edition of Grimms’ Fairy Tales illustrated by G Cruickshank, who went on to illustrate Dickens’ works. If Dickens was consciously or subconsciously inspired by the memory of the fairy tale we should not be surprised. This is, after all, the man who declared ‘if I could have married Little Red Riding Hood, I should have known perfect bliss’.55 At the end of Bleak House, as at the end of the fairy tale Jorinda and Jorindel, the birds are released from their cages. The difference, of course, is that in Bleak House it is the young man who is incarcerated and ultimately his only freedom is in death. There was no fairy-tale ending for Richard and Ada. Dickens gives us express warning of Richard’s fate when, in the first half of the novel, Esther’s narrative observes the ‘riveting’ of ‘a fatal link…between…his free hopes and [Miss Flite’s] caged birds’ (23). Towards the end of the book – by which time Richard is utterly enthralled and in ill health (there are ‘wards’ in hospitals too) – we are told that Miss Flite has added two new birds to her cages, which she calls ‘the Wards in Jarndyce’ (60). Even Richard’s room in Bleak House is closely paralleled with a bird cage. It is said to be ‘a comfortable compound of many rooms’, and in the same passage of text, the ‘native Hindu chair’ outside his room is said to be a compound of ‘a sofa, a box, and a bedstead, and looked in every form something between a bamboo skeleton and a great bird-cage’ (6). It is significant also that Esther Summerson starts her journey – and Bleak House is above all the story of her journey – with ‘no companion left but my bird, and him I carried with me in his cage’ (3). The care she shows for the caged bird foretells the care she will bestow on Richard and on the other ward in chancery, Miss Ada Clare. Esther even calls Ada her ‘pet’, the first occasion falling in chapter three in the Lord Chancellor’s private chamber, at the very heart of the chancery cage. Dickens’ personal identification with Esther,56 which is suggested by his gift to her of the first person narrative,57 is further evidenced in the fact that Dickens doted on a canary which had been given to his daughters around the time that Bleak House was forming in his mind. When the canary died fifteen years later, Dickens had this epitaph carved: ‘This is the grave of Dick, the best of birds, born at Broadstairs, midsummer, 1851, died 54 Intriguingly, the brothers Grimm had both followed their father into the legal profession before they became professors of philology. Jacob even became an assistant to the celebrated professor of civil law, Friedrich Carl von Savigny. 55 Charles Dickens, A Christmas Tree (1850) (this text is taken from the collection Christmas Books, Tales and Sketches (New York, Garden City, Nelson Doubleday, undated c 1955) 363. 56 See T Peltason, ‘Esther’s Will’ (1992) 59(3) English Literary History 671, 690. 57 See ch 5.

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Equity Captured in Chancery at Gad’s Hill Place, 4th October 1866’.58 Dickens’ canary was allowed to fly around the room and perch on heads just like Lawrence Boythorn’s does in Bleak House. Compared with Sir Leicester Dedlock, who keeps his wife like a caged pet (and who would probably prefer all of nature to be ‘enclosed with a parkfence’(2)), Laurence Boythorn is a child of nature – a Laurel Boy-thorn. Contrasting with Sir Leicester in a different way, there is Skimpole, who is no child of nature, but a dependent child and the pet of John Jarndyce. He is a bird, as he says of himself, living in a cage: ‘[t]hey pluck his feathers now and then and clip his wings, but he sings, he sings!’ (43). Richard Carstone personifies the caged bird, but there is one who matches him in this and parallels his fate – Lady Dedlock. He is incarcerated; she is locked. The first time we see Lady Dedlock, she is looking through the window at ‘the light of a fire…on latticed panes’ (2). (How efficiently evocative this is of the fire and ‘pain’ and the latticed bars of chancery which enclose the world of the novel.) The last time we see Lady Dedlock, she is lying ‘with one arm creeping round a bar of the iron gate, and seeming to embrace it’ (59). She tried to fly from her cage (in chapters fifty-five and fifty-six, entitled ‘Flight’ and ‘Pursuit’ respectively) but she could not escape it. The flight and death of Lady Dedlock was foretold when Krook predicted that Miss Flite’s birds would die if ever they were released (14). Bleak House was published in serialised form during 1852 and 1853, and Dickens started writing it in earnest towards the end of 1851.59 This was an eventful year in the life of the Court, which saw the enactment of the reforming Court of Chancery Act 1851.60 Contemporary newspaper reports supplied Dickens with a great deal of inspiration and some detail for the novel,61 but the previous year had also been a remarkably traumatic year in the life of the Court. In 1850, Lord Chancellor Cottenham and Vice-Chancellor Sir James Wigram had resigned, and Vice-Chancellor Sir Lancelot Shadwell had died. The extraordinary case of The Grand Junction Canal Company v Dimes62 cannot have helped the ailing health of Lord Chancellor Cottenham, who died in 1851 (before Bleak

58 FG Kitton, The Life of Charles Dickens: His Life, Writings and Personality (Colchester, Lexden, 2004) 483–84. FR Leavis and QD Leavis notice that ‘Dickens constantly uses the symbol of the caged bird’ (‘Bleak House: A Chancery World’ in Dickens: The Novelist (London, Chatto & Windus, 1970) 130, fn 1). They do not refer to Dickens’ own pet, preferring to attribute his fascination with caged birds to presumed acquaintance with William Blake’s verse on ‘The Schoolboy’, which likens the institutional education of children to the caging of a bird: ‘How can the bird that is born for joy / Sit in a cage and sing?’ Dickens’ usage is, as they observe, undoubtedly ‘Blakean’ in this sense. The association of the caged bird with institutional schooling reminds us of the observation made in ch 1 of this book, that true education entails excursion. 59 J Butt, ‘Bleak House in the Context of 1851’ (1955) 10(1) Nineteenth-Century Fiction 1, 4. 60 14 & 15 Vict. c.83. 61 Butt, above n 59 and J Butt and K Tillotson, ‘The Topicality of Bleak House’ ch 7 in J Butt and K Tillotson (eds), Dickens at Work (London, Methuen, 1957) 177–200. 62 Reports of Cases Argued and Determined in the High Court of Chancery: During the Time of Lord Chancellor Cottenham (London, W Maxwell, 1851) vol II, 92. The case went on appeal to the House of Lords (Dimes v Grand Junction Canal Proprietors (29 June 1852) reported at 10 ER 301; (1852) 3 HL Cas 759).

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In Chancery House was published).63 In 1836, a solicitor named William Dimes had issued proceedings to eject the canal company from his land. The matter came to chancery, but when Dimes discovered that Lord Chancellor Cottenham had shares in the canal company, he resolved to petition the Queen for equity. That plan was advisedly abandoned and more usual channels were taken through the Court of Chancery. In the event, Dimes escaped the clutches of the Lord Chancellor only to be thoroughly trapped by the Master of the Rolls. He paid the traditional penalty of massive costs and when in 1849 Dimes slung a chain across the canal in breach of an 1839 injunction (made perpetual in 1846) he inevitably found himself in prison. It may have been some consolation to him that he was released in time to read instalments of Bleak House as they were published; he no doubt approved of Dickens’ obvious contempt for the Lord Chancellor’s court. Although Bleak House was written between 1851 and 1853, Holdsworth places the main action of the novel in 1827.64 Dickens took employment as a lowly grade of solicitor’s clerk in May of that year and continued in that employment for eighteen months.65 He ‘didn’t much like it’,66 and gave it up to become a reporter. It would be nice to suppose that he was acquainted with the Chancery Commission’s first report on reform of the Court of Chancery which was published in 1826,67 but a young lad at the lowest rung of the legal profession, however exceptional, can hardly be expected to have taken an interest in the grand scheme of procedural reform. The 1826 report was concerned with the problem of chronic delays in the administration of justice in the Court of Chancery, delays which had already passed into a dark joke. A contemporary illustration is provided by the rhyme The True Bottom’d Boxer (1825) which includes ‘measuring mugs for a chancery job’ and ‘chancery suiting’ among the

63 FA Sharman notes that ‘[d]espite the fact that he had been an ill man when Dimes started his allegations against him, it was widely held at the time that it was Dimes’ activities that had caused Cottenham’s death’ (‘Dimes v the Grand Junction Canal Company’ (1986) 28(8) Journal of the Railway & Canal Historical Society 348–52, 352); see likewise, FA Sharman, ‘Feudal Copyholder and Industrial Shareholder: The Dimes Case’ (1989) 10(1) The Journal of Legal History 71. 64 WS Holdsworth, Charles Dickens as a Legal Historian (New Haven, Yale University Press, 1928) 79. It was also in 1827 that Pickwick is first mentioned in the ‘Transactions of the Pickwick Club’ (Charles Dickens, Posthumous Papers of The Pickwick Club (hereafter ‘The Pickwick Papers’)(1836–37) ch 1). Holdsworth argued that Bleak House was a highly accurate depiction of the law at that time. For more recent scholarship on the history of the Court of Chancery leading to the creation of the new Supreme Court of Judicature, see P Polden, ‘Mingling the Waters: Personalities, Politics and the Making of the Supreme Court of Judicature’ (2002) 61(3) Cambridge Law Journal 575–611, 580–82 and M Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery. Parts I and II’ (2004) 22 Law and History Review 389–427, 565–99 (the same issue contains comments on Lobban’s piece by JS Getzler (601ff) and J Oldham (609ff) and a response by Lobban (615ff)). 65 Mr Edward Blackmore took him in to work for Messrs Ellis & Blackmore. See N Page, Charles Dickens: Family History vol III ch 1 ‘Law, Journalism and Miss Beadnell’ (London, Routledge, 1999). 66 Letter to Wilkie Collins (Letters of Charles Dickens 2nd edn (1880) vol 1, 438). Cited in Page, ibid at 17–18. 67 Report Made to His Majesty by the Commissioners Appointed to Enquire into the Practice of Chancery PP, 1826, XV, 1–120.

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Equity Captured in Chancery ‘joys to be found…in fighting’.68 To have an opponent ‘in chancery’ meant that his head was trapped under your arm, thereby leaving your other arm free to punch his face at will.69 It is an image as horrifying as the implication that the Court of Chancery could be counted on to trap litigants in an unbreakable headlock and methodically to bash all reason out of them. In Bleak House, one can almost feel the long arm of chancery choking John Jarndyce in its headlock when he complains that he and other parties to the case of Jarndyce and Jarndyce ‘can’t get out of the suit on any terms, for we are made parties to it, and MUST BE parties to it, whether we like it or not’ (8). This echoes closely the complaint made by the solicitor William Challinor in his important pamphlet (published anonymously) ‘The Court of Chancery; Its Inherent Defects’, in which he writes that his client ‘wished to disclaim further participation in the suit’ but ‘was not allowed to get rid of the litigation’.70 Forster records in his Life of Dickens that the Challinor pamphlet ‘encouraged and strengthened’ Dickens ‘in his design of assailing Chancery abuses and delays’.71 The danger of being trapped in other people’s litigation has been attested to since the dawn of judicial process. A Babylonian proverb warns: ‘do not wander to the place of strife. It is in strife that fate may overtake you, and you may be made a witness for them, to testify in a lawsuit not your own’.72 How closely this echoes Dickens’ admonition to the public, issued through certain selfless solicitors in Bleak House, that none should wander into the place of strife that is Chancery: ‘Suffer any wrong that can be done you rather than come here!’ (1). A chancery maxim says that ‘those who come to equity must come with clean hands’,73 but if one has clean hands it might be better, as one wit wrote, not to enter Chancery at all.74 Samuel Daniel described the court as ‘a Trap to catch our Ignorance, And to entangle our

68 The Universal Songster, or Museum of Mirth etc. . . (illustrated by G Cruikshank, R Cruikshank) (London, Jones and Co, 1834) vol I, 96. (It was apparently written by Mr T Jones and sung to the air ‘Oh! nothing in life can sadden us’.) 69 In the same volume of The Universal Songster (ibid) at 232, a ditty on ‘The Humours of Saturday-Night’ has the line ‘Put his head in Chancery, says a lawyer’s clerk’, and the same usage appears yet again in another ode to fighting at 253. In another song (at 397) the ‘Lawyer Lancery’ brings his audience to tears by reading a bill in Chancery. 70 A Solicitor, The Court of Chancery: Its Inherent Defects (London, Stevens and Norton, 1849) 4. Challinor’s pamphlet anticipates Bleak House in another respect – the estate in the real case of his client’s was, like the fictional case of Jarndyce and Jarndyce, entirely consumed in costs: ‘The costs already incurred in reference to this £300 legacy, are not less than from £700 to £800, and the parties are no forwarder’ (at 6). Challinor’s was by no means the first pamphlet on the theme. As early as 1707 an anonymous attorney published his Proposals Humbly Offered to the Parliament for remedying the great charge and delay in Suits at Law and in Equity (See EBV Christian, A Short History of Solicitors (London, Reeves & Turner, 1896) 107–08). 71 J Forster, Life of Charles Dickens (in three volumes) vol II (London, JB Lippincott & Co, 1872–74) 49. 72 HWF Saggs, The Babylonians (London, Sidgwick & Jackson, 1962) (this text taken from the ‘Folio Society’ reprint of Saggs’ 1988 2nd edn) 174. 73 See ch 3 at 94. 74 CJ Darling, Scintillae Juris (London, Stevens and Haynes, 1889) 120. He cites the Italian proverb Chi va al mulino s’infarina (‘Those who go to the mill cover themselves in flour’).

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In Chancery Intemperance’,75 but whereas Samuel stresses the element of fault in those who go to court, Dickens refuses to point the finger of blame. He acknowledges that rich fools may bring it on themselves (‘the Court of Chancery . . . gives to monied might the means abundantly of wearying out the right’) (1) but he prefers to establish his complaint by the example of innocent victims of chancery – such as Tom Jarndyce, Gridley, Flite and Carstone who it seems found themselves in chancery without, at first, seeking it out. Even today, a chancery rule set down in 1810 has the potential to hold unwitting parties to account as trustees in trusts they never formally accepted.76 A great irony in all this talk of being trapped in chancery is that the chancellor’s court was said to be ‘always open’.77 It was not a ‘term court’78 – which means that it did not keep terms, except in certain suits in the petty bag on the Latin side of chancery;79 as Lord Chancellor Eldon said, with no hint of irony: ‘[the Chancellor’s] Court is open every day of his life, at the pleasure of any suitor’.80 Dickens’ first novel, The Pickwick Papers (1836–37), contains an account of the death in gaol of a ‘Chancery prisoner’;81 and Carlyle’s Past and Present (1843) recites a similar case. Carlyle, in his own words, lived in the ‘time of killing your man in Chancery by inches, and slow heart-break for forty years’.82 These works prepared the way for Bleak House, but the decisive spur must have been Dickens’ own experiences as a chancery litigant in the matter of Dickens v Lee.83 In 1844, he had instigated proceedings to suppress the publication of a pirated abridgement of A Christmas Carol. When, two years later, he was invited to commence similar proceedings, it is clear that he had learned his lesson: I shall not easily forget the expense, and anxiety, and horrible injustice of the Carol case, wherein, in asserting the plainest right on earth, I was really treated as if I were the robber instead of the robbed. Upon the whole, I would certainly much rather NOT proceed.84

In The Battle of Life, written shortly after his 1844 adventure in chancery, Dickens has Mr Snitchey, of the law firm Snitchey & Craggs, ask ‘[w]hat do you call law?’ 75 Samuel Daniel, To Sir Thomas Egerton, Knight: Lord Keeper of The Great Seale of England (1603) stanza 18. The Poetical Works of Mr Samuel Daniel etc (in two volumes) vol II (London, R Gosling et al, 1718) 342, stanza 10. 76 A person nominated to be a trustee of an express trust should disclaim the trust at the earliest opportunity if he does not wish to accept office. Even if the intended trustee is inactive, there is a risk that he will be said to have accepted trusteeship by acquiescence if he stands by while trust business is conducted in his name (Montford v Cadogan (1810) 17 Ves Jr 485). 77 Crowley’s Case (1818) 2 Swan 1, 11. 78 Ibid at 11 79 Ibid at 21. 80 Ibid at 10. 81 Especially ch 44. 82 Book II, ch XVII. 83 Dickens v Lee (1844) 8 Jurist 18. 84 See ET Jacques, Charles Dickens in Chancery: Being an Account of His Proceedings in Respect of the ‘Christmas Carol’ with Some Gossip in Relation to the Old Law Courts at Westminster (London, Longmans, Green and Co, 1914) 59 (quoting Forster’s Life of Charles Dickens, above n 71).

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Equity Captured in Chancery to which Dr Jeddlar reponds, ‘a joke’.85 On 7 December 1850, Household Words, the periodical edited by Dickens, carried an article entitled: ‘The Martyrs of Chancery’ written by the novelist and judge Alfred W Cole.86 It concerned the situation which Holdsworth would later describe as ‘the hopeless lot of persons committed for contempt of court, who were forgotten, and left to die in prison’.87 The Pickwick Papers, Past and Present, Dickens v Lee, The Battle of Life and ‘The Martyrs of Chancery’ – these were the approaching thunders before the dark storm of Bleak House. Dickens’ personal suffering in chancery adds visceral feeling to the brutal imagery of the court as portrayed in Bleak House. The opening words ‘In Chancery’ threaten a violent ending, and the threat is heightened later in the chapter when we are informed that ‘old Tom Jarndyce’ (John’s great uncle) ‘in despair blew his brains out at a coffee-house in Chancery Lane’ some years earlier.88 The threat of violence is ultimately carried out in the tragic death of young Richard Carstone, whose status as a ‘ward in chancery’ makes his fate especially perverse: the Court of Chancery should have embraced him with its protection, but instead it crushed the life out of him. Another reason for Dickens’ choice of the opening words ‘In Chancery’ is that the novel concerns a house that had once been ‘shattered and ruined’, indeed ‘the brains seemed…to have been blown out of the house’ (8). The description ‘in chancery’ was as routinely applied to broken houses as to pummelled pugilists. We know this from various sources, including Challinor’s pamphlet in which he notes that in those days people were known to exclaim: ‘this Estate must be in Chancery’ when they saw ‘a property out of repair…woods going to decay – doors unpainted and gates broken’.89 The language is echoed, as it is enhanced, in Dickens’ description of Bleak House: ‘the wind whistled through the cracked walls, the rain fell through the broken roof, the weeds choked the passage to the rotting door’ (8). It is certain that Dickens is here adapting the language of the

85 Charles Dickens, The Battle of Life: A Love Story (1846) ch 1. Dickens returned to the theme of ‘the joke’ in the article ‘Legal and Equitable Jokes’ written for Household Words (23 September 1854 121–24). 86 The article appeared at 250–52. An extract is reproduced in JM Allan, Charles Dickens’s Bleak House: A Sourcebook (London, Routledge, 2004). 87 WS Holdsworth, Charles Dickens as a Legal Historian (New Haven, Yale University Press, 1928) 80–81. 88 We do not know which coffee shop Dickens had in mind. Leigh’s New Picture of London (London, Samuel Leigh, 1819) lists three coffee houses in Chancery Lane in 1819: ‘Sergeant’s Inn’, ‘Symond’s Inn’ and ‘George’s and Six Clerks’. Perhaps Dickens was thinking of the ‘Sergeant’s Inn’ coffee shop, which he refers to in The Pickwick Papers (ch 63); or perhaps he was thinking of the more poetic ‘George’s and Six Clerks’ (one can speculate that the use of a gun in George’s coffee shop was subconsciously connected to Mr George and his rifle gallery in Bleak House). 89 John Butt notes a similar reference in The Times of 24 December 1850 (Butt, ‘Bleak House in the Context of 1851’ above n 59).

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In Chancery pamphlet directly into the novel. (Dickens received a copy of Challinor’s pamphlet in March 1852 shortly after the publication of the first instalment of Bleak House and several weeks before he published the third instalment, in which chapter eight appeared.) The dominant image in the first chapter, ‘In Chancery’, is, of course, the fog which fills London and surrounds, while seemingly emanating from, the Lord Chancellor. Guppy calls it a ‘London particular’ (3) – which makes a good joke on chancery’s professed concern for particular parties. The fog is a variation on the image which we saw lying at the etymological source of the word ‘chancery’: the physical barrier which stands between the judge and the people. We are told in the opening chapter that the Lord Chancellor is ‘directing his contemplation to the lantern in the roof, where he can see nothing but fog’ while ‘the uninitiated from the streets…peep in through the glass panes in the door’ to see nothing but fog. Thus the law looks out on society and can see only obscurity; while society looks in on the law and sees the same. The genius of the image of the fog is that it combines this sense of law’s alienation from the rest of society with a primal fear of the infernal fire and smoke of hell. Dickens’ Court of Chancery has a demonic quality: it is an ‘infernal cauldron’ and ‘most pestilent of hoary sinners’ (1). This was not the first time that literature had portrayed chancery in such terms. A satirical poem of 1704 damns the infernal quality of ‘slow Chanc’ry’, saying: ‘Our laws, like Lucifer, from heav’n fell, / To raise a Chancery here, as he from Heav’n made Hell’.90 Challinor’s pamphlet had also taken up the idea of chancery as infernal demon, accusing it of being ‘a court which has for so many years, pressed like an incubus, on those, whose property has been unfortunately the subject of dispute’.91 In his 1952 lecture on ‘The Need for a New Equity’,92 Sir Alfred Denning (later Lord Denning, Master of the Rolls) opined that equity had no child then living which was ‘not at least 100 years old’. In other words, that equity had not produced juridical progeny since the publication of Dickens’ Bleak House. In retrospect, the most significant practical effect exerted by Bleak House on the business of the law seems to have been to render the Court of Chancery impotent and sterile. Between the publication of the novel and the time of Lord Denning neither that court nor the Supreme Court of Judicature which replaced it produced any new equitable creature of note. It is almost as if the judges were reluctant to let equity loose after Dickens had fixed the horrors of chancery in the public imagination. If so, their mistake was to confuse equity with chancery. Lord Denning made no such mistake. He lamented the fact that the ‘The Courts of

90 Anon, The Locusts or Chancery painted to the life, and the Laws of England tried in forma pauperis, a Poem (London, 1704) 1. 91 A Solicitor, The Court of Chancery, above n 70 at 3. 92 A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1. See ch 1 at 41.

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Equity Captured in Chancery Chancery are no longer courts of equity’93 and ‘have no jurisdiction to mitigate harshness or to soften rigidity’ but ‘are as fixed and immutable as the courts of law ever were’.94 No judge sought equity more than Lord Denning, but he was no lover of chancery. Indeed, he attributed the loss of his traditional family estates to the fact that his great grandfather was left an orphan in 1807 and made a ward of chancery. ‘The estates’, he wrote, ‘suffered the same fate as those so vividly described by Charles Dickens in Bleak House’.95 The backlog of cases by which the Court of Chancery acquired its infernal reputation is attributable in part to the evidential processes of the Court, which were notoriously complex and productive of the vast mud of papers which Dickens satirises throughout Bleak House. A great deal of fine work has been carried out on the significance of evidential procedures to the historical development of chancery and its ultimate demise.96 I will not duplicate that scholarship here, but the problem may be summarised by saying that chancery’s substantial concern for informal conscience was thwarted by procedural preoccupation with formal documentation. This problem was in part attributable to its traditional respect (derived from the canon law) for written evidence. Chancery would not hear straightforward oral evidence from the parties concerned, hence Challinor’s complaint that ‘the allegations of the parties to the suit, who are generally best acquainted with the true facts of the case, should be at least, heard and received as of some weight’. This, he adds, would be ‘in accordance with the simplest principles of common sense, and the universal practice of primitive justice’.97 Preoccupation with documentation was also attributable, paradoxically, to chancery’s insouciance with regard to formality – chancery’s concern for substance over form produced almost interminable amendment and revision of documentary evidence. The chancellor’s freedom from documentary formality had made the justice of his court relatively attractive in the fifteenth century, compared with that dispensed by the common law courts, but over the course of three centuries the chancellor and the Masters in Chancery developed complex procedures for mining the substance of a matter by complex stages, thereby replacing the constraints of formal common law writs with the more terrible constraints of chancery documentary procedures. One of the worst instances of this disjunction between the substantial ideals of chancery justice and its procedural reality is a

93 It is not clear what Lord Denning meant by ‘The Courts of Chancery’. Perhaps he was referring to the fact that all the superior courts had become courts of chancery equity after the Judicature Acts, or perhaps he had in mind the new Chancery Division of the High Court. 94 Above n 92 at 8. 95 A Denning, The Family Story (London, Butterworths, 1981) 10. 96 JH Langbein, ‘Fact Finding in the English Court of Chancery: A Rebuttal’ (1974) 83 Yale Law Journal 1620; MRT Macnair, The Law of Proof in Early Modern Equity (Comparative Studies in Continental and Anglo-American Legal History) (Berlin, Duncker & Humblot, 1999); L Hutson, Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, Oxford University Press, 2007). 97 Above n 70 at 15.

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In Chancery process by which the plaintiff was said to ‘scrape the defendant’s conscience’.98 The plaintiff would deliberately file an incomplete bill, colloquially known as a ‘fishing bill’ with a view to drawing out the substance of the other party’s defence. The plaintiff could then file an amended bill to traverse all the defendant’s best points. The backlog in the Court of Chancery was also attributable in large degree to the institutional separation of chancery from the common law courts which disabled the latter from employing the evidential procedures and substantial remedies of chancery, and required them to send matters for consideration in chancery – thereby inefficiently disintegrating the functions of fact-finding and judgment by isolating them in different courts. As Dickens put it: [E]quity sends questions to law, law sends questions back to equity; law finds it can’t do this, equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing for A, and that solicitor instructing and that counsel appearing for B. (8)

It is important to realise that chancery was not the only court from which equity was dispensed in the period in which Bleak House is set. The Court of Exchequer, for example, had its equitable ‘side’.99 Proceedings were a little more expensive there than in chancery (principally because costs were assessed by the folio and the Exchequer permitted seventy-two words per folio compared with chancery’s ninety).100 Still, the Court of Exchequer had one great practical advantage over chancery: ‘there was no arrear whatever. The suitor there had not to wait a moment’.101 This efficiency is attributable in large part to the fact that the Court of Exchequer conducted less than a tenth of the business of chancery. It failed to attract more business because its procedures were unfamiliar to chancery lawyers, and because the only avenue of appeal was directly to the House of Lords (whereas the Lord Chancellor could hear appeals in chancery).102 There were local alternatives to chancery too. Challinor refers with approval to the straightforward evidential procedures of the new county courts (created in 1846) compared with the procedures of the central Court of Chancery.103 Before the county courts there had been provincial ‘courts of conscience’, concerned mostly with commercial and credit matters. Legislation throughout the ‘long’ eighteenth century (1688 onwards) had attempted to assure the popularity of these courts by 98 Testimony of James Lowe to the Chancery Commission (9 August 1824) in Appendix A (pt 13) to the Report Made to His Majesty by the Commissioners Appointed to Enquire into the Practice of Chancery PP, 2 March 1826, XV, 165 Q.63. His critical testimony with regard to the contemporary court begins with the naively nostalgic statement: ‘I look upon the ancient practice of the court as perfect’ (160 Q.4). 99 See generally, WH Bryson, The Equity Side of the Exchequer: Its Jurisdiction, Administration, Procedures, and Records (Cambridge Studies in English Legal History) (Cambridge, Cambridge University Press, 1975). 100 ‘Debates in Parliament Relating to the Law: Equity Reform’ In The Legal Observer (Monthly Record for May 1840) 83. 101 Ibid. 102 Ibid at 84. 103 Above n 70 at 15.

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The Earl of Oxford’s Case prohibiting lawyers from sitting as lay judges (‘commissioners’). Margot Finn has examined this strand of legislation in her excellent historical and literary study, The Character of Credit.104 She notes that the legislation tended to emphasise the virtue of equity in contrast to more formal and professional legal methods. She cites the example of Bristol and Gloucester’s Act of 1689, which decreed that the commissioners should judge ‘as they shall find to stand with Equity and good Conscience in a summary way…not tying themselves to the Exact forms and Methods of the Common Law or other Courts of Justice’.105 Such courts were equitable in their attention to the particular party, but this virtue was undermined by the inequitable use of imprisonment as a routine response to failure to pay debts.106 If chancery’s disease of imprisonment had not infected the local courts of conscience, we might have developed a nationwide capacity for efficient and more particular justice not dependent on central bureaucratic formality and not subject to a legal professional monopoly.

The Earl of Oxford’s Case The Earl of Oxford’s Case (1615), which is reported on the first page of the first volume of the Chancery Reports,107 is the wellspring of equity in modern English law. It does not owe this status to any special factual peculiarity. Even the fact that the case was hewn from the bedrock of English life (Henry VIII, Magdalene College Cambridge and the Earl of Oxford all contribute to the factual matrix) was not very unusual in early modern land disputes. Its status is attributable, rather, to the speech of the Lord Chancellor in which he defends his equitable jurisdiction; and to the fact that, in the following year, King James I put his seal of approval on the Lord Chancellor’s reasoning by confirming the jurisdictional supremacy of the chancellor’s court over the courts of the common law. The case concerned land in London which Henry VIII had gifted to Thomas, Lord Audley. By his will, Audley had left the land to Magdalene College, Cambridge (the name of the college is still pronounced Maudleyn in his honour). The college later sold the land to Benedict Spinola, ‘Merchant of Genova’,108 in order to pay off debts owed to him; but (for reasons which will become clear below) it transferred the land to Spinola via an intermediate transfer to Queen Elizabeth. Spinola subsequently sold part of the land to Edward de Vere, the seventeenth Earl of Oxford. In 1583, the earl leased the land to Edward Hamond who assigned it to a Mr W Masham in 1584, and when Masham died it passed to his widow until her remarriage to Francis Castillion on 1 February 1607. The dispute began when 104

Above n 42 at 203–07. I Will & M sess.1 c.18 (1689), HLRO. Quoted in Finn, ibid at 205. Finn, ibid at 207–09. 107 1 Ch Rep 1. 108 The Case of the Master and Fellows of Magdalen College in Cambridge (1615) 11 Co Rep 66b-79a (Pasch 13 Jac I) 67a. 105 106

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In Chancery Barnaby Goche, who was Master of Magdalene (1604–26), purported to lease the land to one John Smith. Francis Castillion made a sub-lease to one John Warren who was promptly ejected by Smith. When the matter came to court, the jury found that Smith’s act of taking possession had been unlawful.109 On appeal, this decision was reversed by Sir Edward Coke (Lord Chief Justice of the King’s Bench) and his fellow justices sitting in the Court of King’s Bench.110 Coke based his decision on the strict wording of a statute which, with the exception of certain short leases, prohibited the disposition of college lands notwithstanding ‘any Law, Custom or usage to the contrary’.111 The statute did not in express terms prohibit sale to the monarch, but Coke rejected the argument that a sale made via a disposition to the Queen should be regarded as a special case. This was consistent with Coke’s wider commitment to restricting royal prerogatives in accordance with his belief that monarchy is established under the common law and not over it.112 In the same case, Coke also made the related point that land devoted to the public benefit should not be passed into private hands, quoting Horace, who in The Art of Poetry, had praised the wisdom of building a wall between public and private; sacred and profane.113 The problem with Coke’s reading of the statute is that it is a very strict reading which takes no account whatsoever of the sharp practice of the college in making a sham conveyance to the Queen. Coke might have been right according to the letter of the law, but justice was hardly served by allowing the college to claim unencumbered title to land which it had pretended to convey and which, having been purchased in good faith by the earl and his tenants, had been much improved by them and had become far more valuable than it was when the college sold it. Coke’s decision rather proves the complaint made by the Lord Chancellor Sir Thomas More some decades earlier, when he observed that chancery injunctions would not have been required if the common law courts had taken the chance to mitigate and reform the rigour of the law for themselves.114 In theory, Coke considered equity to be essential to the art of judgment (he once declared that ‘with respect to keepe my conscience cleare, I must with

109

9 Jac I, Rot 288 (King’s Bench). The Case of the Master and Fellows of Magdalen College in Cambridge, above n 108. 111 13 Eliz I c.10. 112 See generally, I Ward, Law and Literature (Cambridge, Cambridge University Press, 1995) 66; P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power 1558–1660 (Cambridge, Cambridge University Press, 2004) 73. 113 Horace, De Arte Poetica 391–99: ‘Fuit haec sapientia quondam, / Publica privatis secernere, sacra profanis… / leges incidere ligno’ [‘This was deemed wisdom of yore, to distinguish the public from private weal, things sacred from things profane…to engrave laws on tables of wood.] (trans C Smart) The Works of Horace vol II (Edinburgh, Stirling & Slade, 1819) 288–89. 114 W Roper, ‘The Life of Sir Thomas More, Knight’ in EE Reynolds (ed), Lives of Saint Thomas More (1963) ch 32: ‘His Treatment Of Common Law Judges’. The challenge to the common law judges to judge equitably is said to have been issued to them directly at a dinner hosted by More at the Council Chamber at Westminster. When More later reflected on their reluctance to act equitably, he told his biographer, Roper, in rather cryptic terms, that he felt that the judges did not want to entertain equity’s concern for conscience in particular cases, since that would render yet another 110

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The Earl of Oxford’s Case equitie and uprightnes, justly administer justice’),115 but his zeal to diminish or to banish the royal prerogative of the Court of Chancery appears to have blinded him to the possibility of seeking more equitable justice in his own court. This is not to deny that Coke’s zeal was in large part a righteous zeal. Thomas Egerton, Lord Chancellor Ellesmere, was somewhat fervent in his use of injunctions to restrain the enforcement of common law judgments, which caused a massive backlog of business in the Court of Chancery and left numerous litigants imprisoned, many of whom were released by Coke by writs of habeas corpus. But Coke’s righteous zeal does not alter the fact that in this case he ignored the substantial injustice that strict enforcement of the statute would bring about. The defeated party had no option but to seek relief from Lord Chancellor Ellesmere, and so in 1615 Lord Ellesmere heard The Earl of Oxford’s Case. Ellesmere considered that the college had relied on the strict letter of the law in a manner inconsistent with good conscience and he issued an injunction to prevent the college from enforcing Coke’s common law judgment. Coke considered Ellesmere’s action in issuing the injunction to be, in effect, an appeal against the common law judgment and, as such, to be an infringement of the Statute of Premunire (4 Hen IV c.23). As authority for this view he cited the case of Throckmorton v Finch,116 which had been decided against Ellesmere during the reign of Queen Elizabeth I.117 Ellesmere’s speech in The Earl of Oxford’s Case drew the sting from Coke’s objection by an ingenious piece of reasoning. The chancellor’s authority to compel attendance in his court had traditionally been enforced by writ of subpoena, which operated by threatening punishment of the particular person against whom it was directed. This procedure, combined with the chancellor’s traditional concern for concern for conscience, meant that the chancellor could claim to act in personam against the individual party and not against the law by way of illegal appeal:118 [T]he cause why there is a Chancery is, for that men’s actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstance. The office of the Chancellor is to correct Mens consciences for frauds, breach of trust, wrongs and oppressions, of what aspect of judicial business susceptible to the suggestion that it ought to be carried out by juries. (Discussed in JQ Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, Yale University Press, 2008) 148. 115 ‘The Lord Coke, the Preface to his Charge given at the Assises houlden in Norwich, the fourth of August, 1606’ in S Sheppard (ed), The selected writings and speeches of Sir Edward Coke vol II (Indianapolis, Liberty Fund, 2003) 525. 116 Throckmorton v Finch (1597) 3 Coke Inst 124; 4 Coke Inst 86, cited Cro Jac 344. Discussed in M MacKay, ‘The Merchant of Venice: a Reflection of the Early Conflict Between Courts of Law and Courts of Equity’ (Autumn 1964) 15(4) Shakespeare Quarterly 371–75, 371–72. 117 See ch 6 at 209. See generally, Jones, The Elizabethan Court of Chancery, above n 17. 118 Willard Barbour observes the irony that initially it was the common law judges who promoted the theory (which was settled by ‘the reign of Henry VI, if not earlier’) that the chancellor’s decrees were limited to the person subjected to it, and did not cast doubt on the status of the formal legal documentation: W Barbour, ‘Aspects of Fifteenth-Century Chancery’ (April 1918) 31(6) Harvard Law Review 834–59, 843.

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In Chancery nature soever they be, and to soften and mollify the extremity of the Law, which is called Summum Jus. And for the judgment, &c., Law and Equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right; as Justice and Mercy differ in their effects and operations, yet both join in the manifestation of God’s glory. But in this case, upon the matter there is no judgment, but only a discontinuance of the suit, which gives no possession; and altho’ to prosecute Law and Equity together be a vexation, yet voluntarily to attempt the law in a doubtful case, and after to resort to equity, is neither strange nor unreasonable. But take it as a judgment to all intents, then I answer, That in this case there is no opposition to the judgment, neither will the truth or justice of the judgment be examined in this Court, nor any circumstance depending thereon;…By all which cases it appeareth, that when a judgment is obtained by oppression, wrong, and a hard conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party …119

Here Ellesmere is following Christopher St German in taking Aristotle’s sense of equity (the moderation of the strictness of the law) and combining it with chancery’s traditional ecclesiastic concern for personal conscience.120 We know that the chancellor had been loosely associated with conscience and equity since the earliest days of his distinct jurisdiction, but in England there had been no concerted attempt to connect Aristotelian equity to ecclesiastical conscience until Christopher St German’s treatise Doctor and Student,121 in which the following summary of Aristotle’s philosophy makes an (unattributed)122 appearance: [I]t is not possible to make any general Rule of the Law but that it shall fail in some case: and therefore makers of Laws take heed to such things as may often come, and not to every particular case, for they could not though they would….Wherefore in some cases it is necessary to leave the words of the Law, and follow that Reason and Justice requireth, and to that intent Equity is ordained; that is to say, to temper and mitigate the rigor of the Law. And it is called also by some Men Epieikeia.123

It was on the foundation of St German’s work that Ellesmere built his defence of the equitable jurisdiction in chancery. Timothy Endicott, the author of the 119

The Earl of Oxford’s Case (1615) 1 Ch Rep 1, 6–7, 10. Ellesmere expressly cites Christopher St German’s Doctor and Student (below n 121). Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England etc (London, Treverys, 1530) (revised reprint, London, Atkins, 1687). See JL Barton, ‘Equity in the Medieval Common Law’ in RA Newman (ed), Equity in the World’s Legal Systems: A Comparative Study (Brussels, Emile Bruylant, 1973) 139, 153 122 Possibly because St German received his Aristotelian epieikeia indirectly; through the intermediary of Jean Gerson. See Barton, ibid at 154 and Z Rueger, ‘Gerson’s Concept of Equity and Christopher St German’ (1982) 3 History of Political Thought 1–30. Jean Charlier de Gerson was chancellor of the University of Paris during the schism of the papacy in the late 14th century. He employed Aristotle’s idea of equity to justify a departure from strict canon law in order to convene a special counsel to remove an incumbent pope. 123 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England above n 121, ch 16. 120 121

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The Earl of Oxford’s Case treatise on the vagueness of law considered in chapter one, wrote an article earlier in his career which was critical of St German’s influence on the development of equity in English law.124 Endicott argued that by combining the Aristotelian idea with the ecclesiastical idea, St German ‘worked a subtle but crucial change in the understanding of the source and content of conscience’125 which ‘reduces the role of conscience to insignificance, and makes equity into an internal mechanism of the common law’;126 with the result that ‘there is no longer any external check on the law at all, but only an internal process of reconciling a rule to its rationale’.127 This is largely true, but St German still attempted to connect equity with its origins in the Christian doctrine of grace or mercy (he wrote that equity ‘is tempered with the sweetness of mercy’).128 St German’s successors in the reign of Elizabeth I were also committed to that positivist view of equity which Endicott objects to – thus William West observes that: ‘There is a difference between Equitie and Clemencie: for Equitie is always most firmly knit to the evil of the Law which way soever it bends, whether to clemency, or to severity’129 and that ‘equity is a certain proposition and allay, upon good occasions setting on side the common rules of the Law … a ruled kinde of Justice’,130 but it is clear from the reference to ‘setting on side the common rules’ that, like St German, West was conscious of the need to strive beyond posited law. The challenge is to strive to the right degree, without straining. If it is a dangerous extreme wholly to ignore voices other than the narrowly legal, it must be an equally dangerous extreme – probably a more dangerous extreme – to hear extra-legal voices incompletely. There is an illustration of this danger in Lord Ellesmere’s speech in The Earl of Oxford’s Case where the Lord Chancellor’s interpretation of the Bible goes far beyond the sort of reasonable flexibility that one associates with equity: he takes the Old Testament prophecy that the wicked will ‘build houses, but not live in them’131 to support the quite unrelated (and, if one accepts the idea of inheritance, quite untenable) proposition that it would be ‘wicked to live in a house that one has not built or paid for’. Of course, Lord Ellesmere’s apparently liberal reference to equity in The Earl of Oxford’s Case, where he cites its origins in divine and natural law, was not liberal at all; it was in fact the very act of capturing other languages and transcendent ethics to serve the purposes of law, and even more cynically, to further the King’s, and Ellesmere’s own, ambitions in their political competition with Sir Edward

124 ‘The Conscience of the King’, above n 4 at 549. see also, J Guy, Christopher St German on Chancery and Statute (London, Selden Society, 1985) 19–20. 125 Endicott, ibid at 558. 126 Ibid at 559. 127 Ibid at 563. 128 Above n 121, ch 16. 129 W West, The Second Part of Symboleography (1594) references are to the popular 1641 edition (London, Miles Flesher and Robert Young, 1641) 175, section 10. 130 West, ibid at 174, section 3. 131 Deuteronomy (28:30). The Earl of Oxford’s Case (1615) 1 Ch Rep 1, 4.

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In Chancery Coke. Ellesmere saw full well that Coke’s project to restrict or remove the royal prerogative in legal matters was a direct threat to the very existence of the Court of Chancery. What Ellesmere, who was born in the reign of Henry VIII, could hardly have foreseen was that controversy over the royal prerogative would shortly become one of the major causes of the English Civil War (1642–49) and that less than forty years after The Earl of Oxford’s Case, in August 1653, a resolution would be put to the so-called ‘Barebone’s Parliament’ seeking, but (as we know) failing to achieve, the total abolition of the Court of Chancery.132 Whatever the reasons behind it, Ellesmere’s decision to issue an injunction against Coke’s judgment placed the Court of Chancery in direct conflict with Coke and his fellow common law judges. Something had to give. In 1616, the jurisdictional dispute between Ellesmere and Coke, which had arisen in The Earl of Oxford’s Case, and other contemporary cases,133 was referred to King James I.134 The hearing before the King was inevitably something of a show trial. Intent on preserving his royal prerogatives in the face of Coke’s campaign against them, the King determined the matter in favour of the Court of Chancery and thereby established the principle which maintains equity’s preeminent status to the present day: ‘where equity and law conflict, equity shall prevail’.135 Thus the supremacy of the Court of Chancery, like that other peculiarly English institution, the Church of England, traces its independence as much to a clash of political wills and personalities as to any doctrinal dispute. The order made by King James I on 14 July 1616 was in the following terms: Forasmuch as Mercy and Justice be the true Supporters of our Royal Throne, and that it properly belongeth unto us in our Princely Office to take care and provide, that our Subjects have equal and indifferent Justice ministered unto them: And that where their case deserveth be relieved in Course of Equity by Suit in our Court of Chancery, they should not be abandoned and exposed to perish under the Rigor and Extremity of our Laws. We in our princely judgment will and command that our Chancellor, or Keeper of the Great Seal for the Time being, shall not hereafter desist to give unto our Subjects, upon their several Complaints now or thereafter to be made, such relief in Equity (notwithstanding any Proceedings at the Common Law against them) as shall stand with the true merits and Justice of their Cause, and with the former, ancient and continued Practice and Presidency of our Chancery have done … Our will and Pleasure is, that our whole Proceedings therein, by the Decrees formerly set down, be inrolled in Chancery, there to remain of record, for the better Extinguishing of the like Differences and Questions that may arise in future Times. Per Ipsum Regem.136

132

See SE Prall, ‘Chancery Reform and the Puritan Revolution’ (1962) 6(1) The American 28,

30–31. 133 Eg, Courtney v Glanvil (1615) 12 Jac Croke 343 (see generally, CD Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke, 1551–1634 (Boston, Little, Brown, 1957) 362). 134 JH Baker, ‘The Common Lawyers and the Chancery: 1616’ (1969) 4 Irish Jurist; LA Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, Cambridge University Press, 1977). 135 This principle is currently enshrined in the Supreme Court Act 1981, s 49(1). 136 1 Ch Rep 49; 21 Eng Rep 65.

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The Earl of Oxford’s Case It is my submission that the key language and imagery in the opening phrase of this royal order was borrowed from the work of Shakespeare. If this is correct, it means that Shakespeare had a hand in the first line of the decree that first placed equity over law in the English jurisdiction. I base my submission on the close resemblance between the words, ‘Forasmuch as Mercy and Justice be the true Supporters of our Royal Throne’, and the line in the final Act of Measure for Measure where the Duke invites Angelo to take one hand and Escalus137 to take the other. The Duke says ‘Come, Escalus, /You must walk by us on our other hand; /And good supporters are you’ (5.1.17–19). The resemblance is compelling when one appreciates that Angelo is the figure of strict law or ‘justice’ (he is even named ‘Justice’ in the play)138 and Escalus is the figure of equity (a word which was casually interchanged with mercy at the time). When James I acceded to the throne of England in 1603, the Scottish unicorn and the English lion became the ‘supporters’ of the shield of arms in the royal crest, and in the technical terminology of heraldry they were ‘true supporters’ because they were depicted to be physically touching and holding up the shield. King James was using this formal and technical sense of ‘true supporters’ to emphasise the more substantial and meaningful truth of the supporters Mercy and Justice, which he considered to be necessary qualities of kingly rule.139 It is clear that Shakespeare had used the phrase ‘good supporters’ in the same heraldic sense. The image of the duke with strict law (Angelo) on one hand and equity (Escalus)140 on the other creates a heraldic tableau which places a seal on the play in its final scene. There is practically nothing between the two references: Shakespeare portrayed strict law and equity as ‘good supporters’ and the King portrayed them as ‘true supporters’. It is true that the King used the words ‘justice and mercy’ as synonyms for ‘law and equity’ but so had Lord Ellesmere in his judgment in The Earl of Oxford’s Case a year earlier. It was, as already mentioned, common practice in early modern England to use these terms interchangeably in this way. There is no doubt that the King was using ‘supporters’ in the heraldic sense,141 so why does

137 ‘Escalus illustrates equity’ (JW Dickinson, ‘Renaissance Equity and Measure for Measure’ (Summer 1962) 13(3) Shakespeare Quarterly 287–97, 297. See ch 6 where I consider Escalus as the figure of equity in the play. 138 Escalus says ‘my brother justice have I found so severe, that he hath forced me to tell him he is indeed Justice’ (3.2.435–36). 139 He was the author of a treatise on the subject, written in the form of an advice to his son, Prince Henry: Basilikon Doron or His Majesties Instrvctions To His Dearest Sonne, Henry the Prince (Edinburgh, 1599). In the event, Henry died in 1612 and never became king. 140 The argument that Escalus is equity is set out in ch 6 at 219. 141 In a minority of places the order has been reproduced with ‘supports’ mistakenly transcribed instead of ‘supporters’. There is no doubt that ‘supporters’ is the true intended word, not just because of the heraldic symbolism, but because it was a phrase in contemporary use. It appears again (accompanied by ‘throne’, ‘law’, ‘justice’ and ‘equity’) in the opening paragraph of the dedication to King James of Gerard Malynes’ celebrated treatise on the Law Merchant: ‘The state of Monarchie must needes be the Supreamest thing vnder the cope of Heauen, when Kings are not only Gods Lieutenants vpon earth, and sit vpon his throne; but also are called Gods, by God himselfe, in regard of their Transcendent Preheminences and Prerogatiues, whereby they maintaine Religion and Iustice, which

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In Chancery the order talk of support for the ‘throne’ instead of support for the royal coat of arms? One answer is that the King is using the heraldic language symbolically, not technically; ‘throne’ is therefore symbolic shorthand for ‘reign’ or ‘kingly rule’. Another possibility is that the King was mixing Shakespeare’s heraldic imagery with the biblical description of the lions under the throne of Solomon. It is easy to see how the King might have consciously or unconsciously combined the lions under the throne with the lion supporting the coat of arms. The biblical image of lions under the throne would have held a special appeal for the King, not only because he had patronised the English language ‘Authorised Version’ of the Bible published in 1611, but because Sir Francis Bacon had referred to judges as ‘lions under the throne’ in 1612 in his essay ‘Of Judicature’. (Indeed, it is quite likely that Bacon, who was Attorney General in 1616 and went on to succeed Ellesmere as Lord Chancellor, was responsible for drafting the text of the order of July 1616). The biblical idea of the lion under the throne might well have supplied the word ‘throne’ which appears in the order of 1616. More technically specific and more striking, though, is the connection between Shakespeare’s Measure for Measure and the use of the precise technical language of heraldry to describe the relationship between law (justice) and equity (mercy). So how did Shakespeare’s line come to influence the royal order? We can rule out the possibility that Shakespeare acted as a royal speech writer, he had been dead for nearly three months and to write from the grave was beyond even his powers. We can also rule out the implausible possibility that Bacon was the author of the play ascribed to Shakespeare (quite apart from the strong historical evidence against such a theory, Bacon’s writing, even when it is poetic, remains always stolidly intellectual and lacks the natural flow of Shakespeare’s verse). We can almost as certainly rule out the possibility that the King or his advisors had access to a copy of the play. The play did not appear in print until it appeared in the first folio edition of Shakespeare’s works in 1623 and I have found no evidence that the King or those closest to him possessed a manuscript copy. This leaves only three candidate explanations for the connection. The first possibility is that the royal order is the source of the heraldic image and that it was written into Shakespeare’s play some time after 1616 by an editorial hand. That is too far-fetched. It is true that Shakespeare’s may not be the only hand at work in the final two acts of the 1623 first folio edition,142 but it is most unlikely that this isolated line from a royal order among a mass of contemporary court documents would have found its way into Shakespeare’s text. In any case, Shakespeare’s line

are the onely true supporters and fundamentall stayes of all Kingdomes and Common-weales, so naturally vnited and conjoyned, that where both of them are not, properly there can be neither. These high Attributes cause their Lawes to be sacred, and consequently religiously to be obserued; whereby Iustice is administred, which is Distributiue and Commutatiue. The Commutatiue part includeth Traffick, which is the sole peaceable instrument to inrich kingdomes and common-weales, by the meanes of Equalitie and Equitie’ (G Malynes, Consuetudo vel Lex Mercatoria (London, Adam Islip, 1622)). 142 G Taylor and J Jowett, Shakespeare Reshaped, 1606–1623 (Oxford, Clarendon Press, 1993).

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The Earl of Oxford’s Case displays the integrity of originality, whereas the line in the royal order sounds like a somewhat awkward derivative blend of the heraldic and the biblical images. The second possibility is that Shakespeare and the King (or the King’s draftsman) borrowed the idea of representing justice and mercy (law and equity) in heraldic terms from another source. I have found no evidence that such a source existed, let alone that they had access to it. The third possibility is the most plausible. It is that the King (or his draftsman) was recalling the line from Shakespeare’s play. The King is believed to have seen the play on St Stephen’s Day (26 December) 1604, which is the earliest public performance of the play on record. Even if the King never saw the play again, there is good reason to think that Shakespeare’s heraldic image would have lodged in his consciousness until 1616. The heraldic image was not only a strikingly topical allusion to the King’s new royal crest and a flattering reference to the King’s well-known interest in the relationship between justice, mercy and kingly rule,143 it was also presented in dramatic tableau form in the final scene of the play. How could the King have forgotten it?144 The hand-holding aspect of the heraldic tableau in Measure for Measure was a popular element in early modern metaphors for equity’s relationship to law. Lord Ellesmere used the hand-holding metaphor in his speech in The Earl of Oxford’s Case, where he portrayed the common law and equity as co-workers in a productive partnership who ‘ought to join hand in hand in moderating and restraining all extremities and hardships’.145 His Lordship adds that, although they function differently, ‘both aim at one and the same end, which is to do right’. Shakespeare had referred to this sense of constructive partnership between equity and law a few years earlier in the 1608 quarto edition of King Lear in a scene in which the King conducts a mock trial set in hovel in the midst of a storm. In his madness, the King imagines that he is calling his daughters Goneril and Regan to account for the injustices he perceives they have inflicted on him: ‘I’ll see their trial first, bring in their evidence’. He constitutes a three-man bench of judges. To Edgar, he says ‘[T]hou, robéd man of justice, take thy place’146 (3.6.37) (this suggests the office of Lord Chief Justice); to the Fool he says ‘[a]nd thou, his 143

See Basilikon Doron (1599) above n 139. See, generally, JM Wasson, ‘Measure for Measure: A Text for Court Performance?’ (1970) 21 Shakespeare Quarterly 17. It has been said that the play was intended to flatter the new king by depicting him in the figure of Duke Vincentio (see E Schanzer, The Problem Plays of Shakespeare (London, Routledge & Kegan Paul, 1963) 123–26) but it seems to me that the Duke is a distinctly unattractive model of a monarch. The disguised Duke in Measure for Measure has something of the same quality of secret sovereignty that we detect in the disguised Prince Hal in the robbery scene in I Henry IV (see ch 6 at 208), but the Duke’s choice to disguise the law was borne of whim and not designed to reverse any wrong. The Duke’s actions therefore represent a perversion of justice rather than a perfection of it. In the case of the Duke there is little virtue behind the disguise, as the play reminds us: ‘cucullus non facit monachum’ (5.1.286) (‘a hood does not a monk make’). The Duke is, as Lucio says, the ‘duke of dark corners’ (4.1.143). 145 (1615) 1 Ch Rep 1, 4. 146 Text references for this scene are from P Edwards (ed), King Lear The Macmillan Shakespeare (London and Basingstoke, Macmillan, 1975) 163. 144

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In Chancery yokefellow of equity, / Bench by his side’ (3.6.38) (this clearly indicates the Lord Chancellor) and to Kent he says ‘You are o’ th’ commission, /Sit you too’ (3.6.39) (the reference is probably to a local justice, but all judges had to be commissioned by warrant of letters-patent). The scene is absent from the 1623 first folio edition of Shakespeare’s collected Comedies, Histories and Tragedies. This is probably down to the fact that in 1608 the zealous reformist Edward Coke had not yet attained the rank of Lord Chief Justice and so the traditional constructive partnership between the chancellor and the common law judges had not yet broken down, whereas by 1623 the political controversy between law and equity was perhaps still too fresh in the memory to include the hovel scene in the folio edition.147 All this talk of history should not distract us from the need to identify the image of equity that is at stake for the future. It is essential to ask whether the metaphors of yoked oxen and hand-holding are accurate as images of the partnership between juridical equity and general law? The answer is that they are not accurate enough.148 They capture the sense that law and equity are agencies working in partnership towards a common outcome, but they do not elucidate the dynamic nature of that partnership, and it is a prime purpose of the present study to do just that. It is crucial to realise that the dynamic of equity’s partnership with law is agonistic. It depends on constructive opposition. The problem with oxen that are yoked, and partners who hold hands, is that they progress by walking the same way. To capture the sense that equity and law both aim at one and the same end by opposing each other, we must turn to a new metaphor. We will consider several candidates in chapter four and elsewhere throughout this book, but it will suffice to offer here the simple picture of an archer’s hands upon the bow: there is a single aim, but one hand pushes and the other pulls.149

In Fashion: Equity and the Problem of Precedent Chancery…knows no wisdom but in precedent. Charles Dickens, Bleak House

The first chapter of Bleak House, ‘In Chancery’, is immediately followed by a chapter entitled ‘In Fashion’, in which Dickens notes at the outset that ‘[b]oth the world of fashion and the Court of Chancery are things of precedent and usage’. The problem of precedent is to know how long to follow it. The answer is probably ‘longer than mere fashion would dictate’, but ‘not so long that justice is 147 BJ Sokol and M Sokol, ‘Shakespeare and the English Equity Jurisdiction: The Merchant of Venice and the two texts of King Lear’ (1999) 50 The Review of English Studies 417–39. 148 I make the point in ch 4 that metaphors are most effective when employed severally and cumulatively. 149 Plato uses this metaphor, for a quite different purpose, in The Republic (5.4.2.439b-c) (trans D Lee) 2nd rev edn (London, Penguin Classics Edition, 1974) 215.

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In Fashion: Equity and the Problem of Precedent locked up’. Baron Stowell once said, with no apparent embarrassment that ‘[a] precedent embalms a principle’.150 The problem with things embalmed is that they are already dead. If a case is decided today as a substantially similar case was decided yesterday, we will be justified in saying that it is wise to follow the precedent. It is fair to assume that society’s sense of legitimate and illegitimate is broadly speaking the same today as it was yesterday, and it is also fair to follow yesterday’s precedent because the people who left court yesterday are entitled to expect that justice does not change on a daily basis. But this is simply to follow a fashionable justice, a justice that is fashioned to the particular time and taste. English law is committed to the idea that the law is never merely fashionable. In English law a precedent never goes out of date. An old authority can be avoided on the ground that it was decided as matters stood which no longer stand,151 but otherwise an old authority remains a good precedent and, if it is a decision of a court with sufficient authority, it remains a good and binding precedent in the instant court even though it may be more than a hundred years old.152 And yet if a case can be distinguished because it was decided as matters once stood, it must be true that most cases will eventually become obsolete because society as a whole does not stand still. The evidence of my own brief and less-than-empirical survey of leading cases in the current law of equity and trusts indicates that a mere one in twenty is a survivor from the pre-Judicature Acts regime.153 To follow a precedent for precedent’s sake is justifiable only for a time. Beyond that time, to follow the precedent for precedent’s sake alone is arguably more arbitrary in the sense of being ‘unreasoned’ than to decide the instant case anew and free of precedent. The tension between the arbitrary nature of ad hoc decision-making and ‘arbitrary’ adherence to precedent for precedent’s sake is inescapable in any common law system, but it is a particularly acute problem for equity. Strict equality before the law, and aequus (or even aequitas) in the sense of level justice, calls for an ephemeral or fashionable following of precedent,154 but there is nothing in the nature of equity in the sense of epieikeia that would require it to

150

Opinion delivered in 1788, quoted by Disraeli: Hansard, col 1066 (22 February 1848). It is said to have been decided ‘rebus sic stantibus’ (Trustees of the British Museum v Attorney General [1984] 1 All ER 337 at 342f (Robert Megarry VC)). 152 Only the Judicial Committee of the House of Lords is permitted to depart from its own decisions ‘when it appears right to do so’ (‘Practice Statement (Judicial Precedent’) [1966] 1 WLR 1234). An example of a sleeping precedent which was woken much to everyone’s surprise is the case of Ballard v Tomlinson (1885) 29 Ch D 115 which provides that it is a natural right of land owners to draw unpolluted water on their own land and which slept for a century until the Court of Appeal held that it could be applied to hold a tannery strictly liable to compensate for polluting a water supply even though the tannery had complied with best precautionary practice at the relevant time (Cambridge Water Co v Eastern Counties Leather plc [1993] Env LR 287). The decision was subsequently overturned by the House of Lords ([1994] 2 AC 264). 153 The survey was based on the cases referred to in current textbooks. 154 Cicero identified the principle of aequitas at work in the argument made by analogy (argumentum a pari) (Topica section 23 in Marcus Tullius Cicero, Rhetorica (ed AS Wilkins) (Oxford, Clarendon Press, 1903) vol II). 151

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In Chancery conform to the prejudice of precedent. Despite this, the legal doctrine of precedent came to dominate the chancery idea of equity just as it had dominated the common law. In the fifteenth century, the only record of the chancellor’s decrees was ‘in the chance case when the decree was indorsed upon the bill itself ’,155 so in the sixteenth century, lawyers began to ask whether ‘it be meet that the Chancellor should appoint unto himselfe, and publish to others any certaine Rules & Limits of Equity’.156 That question was answered by King James I. When he established the jurisdictional primacy of equity in 1616, he also by the terms of that order required the decrees and deliberations in the matter to be recorded ‘for the better extinguishing of the like questions or differences that may arise in future times’. The Earl of Oxford’s Case was the first case reported in the Chancery Reports. Fifty years later, it appears that the most senior common law judge (Sir John Vaughan, Lord Chief Justice of the Common Pleas, 1668–74) was still adjusting to the idea of precedents in chancery. We are told that ‘he wondered to hear of citing precedents in matter of Equity; for if there be equity in a case, that equity is a universal truth, and there can be no precedent in it’.157 The year after that judge retired, Sir Heneage Finch, Earl of Nottingham (1675–82) was appointed Lord Chancellor and the pace of systematisation in chancery quickened. It is said that he acquired his sobriquet ‘the father of modern equity’158 because of his many equitable creations or ‘children’, but it is more apt as an indication of the discipline that he brought to equity in chancery. Lord Nottingham developed equity along principled lines, but he did not adhere slavishly to precedent. His Lordship was still conscious of equity’s mandate to do better justice and he said in Freeman v Goodland that if he found the law to be unjust ‘he would alter the law in that point’.159 Lord Nottingham’s systematic approach to the development of equity principles was an incident of eighteenth-century scientific ‘Enlightenment’, but the significant stage of equity’s incarceration in chancery precedent came later. One eighteenth century author sounded a note of caution when he wrote: ‘I apprehend precedents not of that great use in equity as some would contend, but that equity thereby may possibly be made too much a science for good conscience’,160 but the caution went unheeded. By the start of the nineteenth century Lord Redesdale announced that the principles operative in courts of equity ‘are as fixed and certain as the principles on which the courts of common law proceed’.161 Perhaps it had been assumed that systematisation would produce efficiency, which was the thing that chancery most needed at the start of the nineteenth century. If that was the assumption, it could not have been

155

Barbour, ‘Aspects of Fifteenth-Century Chancery’, above n 118 at 834–59, 842. Lambarde, Archeion, above n 48 at 74. 157 Fry v Porter 1 Mod 300. 158 Holdsworth, History of English Law, above n 10, vol VI, 547. 159 Freeman v Goodland (1678) Ch Rep 295; cited (incorrectly as Freeman v Goodham) by Lord Chancellor Talbot in Heard v Stamford (1735) 3 P Wms 411. 160 Anonymous, Grounds and Rudiments of Law and Equity (1749) 5, 6. 161 Bond v Hopkins (1802) 1 Sch & Lef 413, 428–29. 156

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The New Life of Equity more wrong. The chief Chancery Master, the Master of the Rolls, had been appointed in 1729 to sit as a second judge in certain cases and a Vice-Chancellor was appointed in 1813 to assist the Lord Chancellor and the Master of the Rolls. There can be little doubt that that the cage of chancery would not have crushed the life out of the equity of that court if the Lord Chancellor and his fellow judges had sat from 1813 as equitable arbitrators free of reported precedent and free of documentary formality and free of lawyers; relying instead on direct oral evidence and their own understanding of the general law and the principles of equity. Our only loss would have been that Bleak House would never have been written. Be that as it may, the reality is that the transformation of chancery equity into a rule-bound, systematic body of precedent and doctrine was almost total by 1827, the year in which Bleak House was set. Maddock had written as early as 1814 that ‘the system of our courts of equity is a laboured, connected system, governed by established rules, and bound down by precedents, from which the judges do not depart’.162 His book was dedicated to the Lord Chancellor at the time, Lord Eldon, who, a few years later, opined that: The doctrines of this Court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done any thing to justify the reproach that the equity of this Court varies like the Chancellor’s foot.163

Dickens’ complaint that ‘Chancery…knows no wisdom but in precedent’ (39) was accurate as a description of that court in the year in which Bleak House was set, and it was all the more true by the time Bleak House was published in the years 1852 and 1853. When, in 1879, Sir George Jessel, the Master of the Rolls, looked back (nearly as far as Bleak House), to 1866, he opined that by then ‘Equity Judges did not profess to make new law, and when they state what the law is, they do not mean, as might have been said two or three centuries before, that that was law which they thought ought to be law’.164

The New Life of Equity The Judicature Acts 1873–75 liberated equity from chancery, but it seems to have suffered the fate which Krook predicted for Miss Flite’s birds on their eventual release – the other birds (the other courts) killed it off. Perhaps it was not killed 162 H Maddock, A Treatise on the Principles and Practice of the High Court of Chancery in Two Volumes vol I (London, 1814) (references are to the American edn (New York, Gould & Co, 1817) preface, viii). 163 Gee v Pritchard (1818) 2 Swans. 402, 414. 164 Johnson v Crook (1879) LR 12 Ch D 639 at 649.

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In Chancery outright, but it certainly did not thrive. The picture was similar in the United States, where in 1905 Roscoe Pound observed that a ‘rooted objection to all power of equitable application of rules to concrete cases’ had produced ‘a decadence of equity’.165 The decay of equity was confirmed a generation later by one of the most famous of all cases in the common world – the one in which a decomposed snail is supposed to have been accidentally served to café customers in an opaque bottle of ginger beer (the facts were never firmly established).166 The case established that the consumer of the beverage had a right of action against the manufacturer even though there was no direct contract between them. Sir Anthony Mason suggested that the ‘neighbour principle’ developed by Lord Atkin in that case could have been developed in equity instead of at common law.167 Whether this is true or not depends entirely upon how the innovation is expressed. If it is described as a new general law to require a positive duty of care, it is no business of equity – and this is how it was phrased; which is why it became part of the general law of tort. If it had been described as a measure to prevent a contracting party from unconscionably denying a duty of care to a non-contracting party in certain types of case (cases concerning a concealed physical risk, for instance), the duty of care might then have evolved from case to case and context by context as an equitable restraint of unconscionable reliance on the shortcomings of contract law, instead of becoming, as it did, the freestanding general duty of care that continues to fuel the legalism and litigiousness of societies in common law jurisdictions. In the middle of the twentieth century, Harman LJ, a senior chancery judge, declared that ‘Equity is not past the age of child-bearing’,168 but we have already noted that one year later Lord Denning said, with regret: ‘I do not think it has any child now living which is not at least 100 years old’.169 A further twenty years later, and almost a full century after the Judicature Acts, the metaphor of equity’s child-bearing reappeared in the case of Cowcher v Cowcher in a judgment delivered by Bagnall J. His Lordship indicated little prospect that he would be delivering a new child to equity any time soon: In any individual case the application of these propositions may produce a result which appears unfair. So be it; in my view, that is not an injustice. I am convinced that in determining rights, particularly property rights, the only justice that can be attained by mortals, who are fallible and are not omniscient, is justice according to law; the justice which flows from the application of sure and settled principles to proved or admitted facts. So in the field of equity the length of the Chancellor’s foot has been measured or

165 R Pound The Spirit of the Common Law (Francestown, NH, Marshall Jones, 1921) 43; see also, R Pound ‘The Decadence of Equity’ (1905) 5 Columbia Law Review 20. 166 Donoghue (or M’Alister) v Stevenson [1932] AC 562 (HL). 167 A Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law World’ (1994) 110 Law Quarterly Review 238, 239. 168 (1951) 67 LQR 506. 169 A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1, 2.

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The New Life of Equity is capable of measurement. This does not mean that equity is past childbearing; simply that its progeny must be legitimate — by precedent out of principle.170

I agree with this judge when he says that apparent unfairness need not denote injustice and that the law of property is proper unto itself, but the law of property is much more than a law of entitlement. In the jurisdiction of England and Wales, it has always been a law of strict legal entitlement tempered by the need to prevent the very rigidity of the law from being turned inequitably into a means of abusing others. It is with these concerns in mind that Lord Denning proclaimed a new child for equity in a case reported three years after the judgment of Bagnall J in Cowcher v Cowcher. In the Court of Appeal in Eves v Eves,171 Lord Denning faced the familiar situation of an unmarried woman who lived with a man in his home as if she was his wife, took his name and bore his children, only to be threatened with eviction when their relationship broke down. The man admitted that he had used the plaintiff ’s age (she was under 21 when their cohabitation commenced) as an excuse for not placing legal title to the house in their joint names. In his judgment, Lord Denning initially acknowledged the strictness of the law, much in the way that Portia did in the courtroom in The Merchant of Venice. When urged to do a little wrong to do a great right, Portia said: ‘It must not be; there is no power in Venice / Can alter a decree established. / ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state. It cannot be’ (4.1.218–22). His Lordship said, likewise: ‘In strict law she has no claim on him whatever. She is not his wife. He is not bound to provide a roof over her head. He can turn her into the street’.172 Portia used her statement of the strict law as the starting position from which to take the strict law to an even stricter extreme, but Lord Denning produced a genuine equitable moderation: Such is the strict law. And a few years ago even equity would not have helped her. But things have altered now. Equity is not past the age of child bearing. One of her latest progeny is a constructive trust of a new model. Lord Diplock brought it into the world and we have nourished it.173

Lord Denning says, with very slender justification, that he is merely adopting and nurturing a child whose natural father was a respected judge in the superior court of the House of Lords. In fact, the Master of the Rolls was relying on a solitary short passage in Lord Diplock’s speech in the case of Gissing v Gissing,174 and it is quite certain that Lord Diplock would not have foreseen the use to which it would be put. Lord Diplock had opined that a constructive trust will arise ‘whenever the trustee has so conducted himself that it would be inequitable to

170 171 172 173 174

Cowcher v Cowcher [1972] 1 All ER 943, 948. Eves v Eves [1975] 1 WLR 1338. At 1341. Ibid. Gissing v Gissing [1971] AC 886.

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In Chancery deny the cestui que trust a beneficial interest in the land acquired’.175 This, in the eyes of Lord Denning, was a fruitful enough seed from which to cultivate a new type of informal trust. Lord Denning understood that it is prudent to pretend to be following a precedent, even when innovating. It may be true, as certain authors allege, that ‘equity’s naked power of improvisation’ has long been ‘spent’,176 but this is only because equity’s naked power of improvisation is nowadays dressed up in the guise of principle and precedent. We are still enamoured of Lord Denning’s judgments because their naked creativity is so scantily clothed. Their natural justice still shows through. Three decades after his 1952 lecture on ‘The need for a new equity’, Lord Denning’s looked back on it and observed that ‘there remains a great deal that can yet be done by the judges’. He urged that: ‘[t]he judges should so handle precedent – and should so interpret statutes – as to do justice – in a way fitted to the needs of the times in which we live’.177 We have seen that Jessel once observed that by 1866 ‘Equity Judges did not profess to make new law’,178 but we should not rule out equitable innovation unless we are convinced of two things: first, that the law has at last reached a settled state of perfection; and secondly, that this very settled state cannot be made an instrument of abuse. We have not reached that state yet. In another case, one year later, the Master of the Rolls acknowledged that the rules of Courts of Equity ‘were invented…We can name the Chancellors who first invented them’ and that equity’s ‘doctrines are progressive, refined’.179 Why should they not progress further and be further refined?

175

Ibid at 905. RP Meagher, WMC Gummow, and JRF Lehane, Equity, Doctrines and Remedies 2nd edn (Sydney, Butterworths, 1984) 68–69. 177 The Family Story, above n 95 at 177. 178 Johnson v Crook (1879) LR 12 Ch D 639 at 649 (Sir George Jessel MR). 179 Re Hallett’s Estate (1880) 13 Ch D 696 at 710 (Sir George Jessel MR). 176

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3 Chancery Script ‘Think of the laws appertaining to real property; to the bequest and devise of real property; to the mortgage and redemption of real property; to leasehold, freehold, and copyhold estate; think,’ said Mr. Snitchey, with such great emotion that he actually smacked his lips, ‘of the complicated laws relating to title and proof of title, with all the contradictory precedents and numerous acts of parliament connected with them; think of the infinite number of ingenious and interminable chancery suits, to which this pleasant prospect may give rise; – and acknowledge, Dr. Jeddler, that there is a green spot in the scheme about us!’ Charles Dickens, The Battle of Life (1846)1

F

OR THE SOLICITOR Jonathan Snitchey, of the firm Snitchey and Craggs, the ‘green spot’ in the scheme of law is the prospect of fees. We have, in contrast, the prospect that green buds of true equity might have survived within the bramble bush of chancery law.2 The ‘true equity’ that we hope to find is that art of judgement (and judgment)3 which bends formal and routine law without breaking it. There is hope that we will find the green spot we are looking for. After all, even in the midst of Lincoln’s Inn we still find, closed in by the old Court of Chancery and the walls of barristers’ chambers, a garden that is a remnant and reminder of the fields the law was built on.4

1 Charles Dickens, The Battle of Life (1846) ch 1 (this text from Charles Dickens, The Christmas Books vol II (Harmondsworth, Penguin, 1971) 135–232, 153. 2 Other writers have seen true equity, or at least a new version of chancery equity, in such developments as administrative law (eg LJ Emmerglick, ‘A Century of New Equity’ (1944–45) 23 Texas Law Review 244, 245–46) and alternative dispute resolution (eg TO Main, ‘ADR: The New Equity’ (2005) 74 University of Cincinnati Law Review 329). 3 The omission of the central ‘e’ from judgment in juridical contexts is one of the more subtle formal methods by which lawyers have insulated legal vernacular from everyday language. In conversation together, the lawyer and non-lawyer might think that they are using the same word; but lawyers know that there is a certain character missing from the non-lawyer’s version of the word. 4 Dickens has the law stationer Snagsby remark that ‘he has heard say that a brook ‘as clear as crystal’ once ran right down the middle of Holborn, when Turnstile really was a turnstile, leading slap away into the meadows’ (Bleak House, ch 10).

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Chancery Script

The Future of Chancery Language in English Law In this chapter we will search between the lines of chancery script for signs of true equity, but before we commence that search it is necessary to address concerns raised by commentators who see no future hope, no green spot, in the traditional chancery language of equity. I will treat Sarah Worthington as their spokesperson. She argues that the distinct languages of chancery equity and the common law ought to be replaced by a new integrated legal language.5 Worthington objects to received language on the basis that it is old-fashioned – she complains of an ‘historical time warp in orthodox descriptions’6 (‘unconscionability’ is apparently one of the descriptions that she has in mind). The complaint is misplaced. The present law does not become, by virtue of traditional language, a law trapped in the past. If there is an historical time warp here it is in Worthington’s time warp to an idealised future. In this respect she represents one of the oldest and least realistic traditions of the common law – the tradition of faith in legal Utopia. My ethos and aims differ from those of the American Legal Realists, but I agree with their leading light, Roscoe Pound, when he observed that analytical jurists, who claim that they have glimpsed, and can reveal, an underlying scientific and systematic ideal of law are really promoting just another form of fiction: We see clearly enough today that the analytical jurist’s logically interdependent body of precepts conforming to a universal plan and potentially covering every conceivable case is not in the least a ‘pure fact.’ It is an ideal. It is a picture of law as it is conceived to be.7

The celebrated legal historian Sir William Holdsworth, who I will claim was an early exponent of law and literature scholarship,8 concluded, when speaking in relation to an aspect of contract law, that a legislator, preparing a code of laws on logical principles, would never divide the field of law, as English law is divided, into the two supplementary parts of law and equity. But I think that it may be maintained that the system is defensible in principle.9

He was attesting to the fact that accidental historical processes sometimes produce acceptable, even desirable, outcomes. In the jurisdiction of England and Wales, a desirable outcome was eventually reached when the courts of equity and

5 S Worthington, Equity (Oxford, Clarendon Press, 2003) especially ch 10 ‘Equity – the Endgame’. 6 Ibid at 306–07. 7 R Pound, ‘The Ideal Element in American Judicial Decision’ (1931–32) 45 Harvard Law Review 136, 145. 8 See WS Holdsworth, ‘Literature in Law Books’ (lecture delivered to the Faculty of Law in the University of Birmingham, 18 November 1938) reproduced in AL Goodhart and HG Hanbury (eds), Essays in Law and History (Oxford, Clarendon Press, 1946) 219–37; and WS Holdsworth, Charles Dickens as a Legal Historian (New Haven, Yale University Press, 1928). 9 ‘The Formation and Breach of Contract’ in Goodhart and Hanbury (eds), ibid at 128–46, 145 (reprinted from (1934) 50 Law Quarterly Review 180).

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The Future of Chancery Language in English Law common law united the administration of their courts while retaining a functional distinction between equity and general law and distinct languages to describe their distinct functions. There may be ‘much truth in the view that equity is an historical accident’,10 but there is no evolution without accidents. Arguably the best progress is not planned progress, but that which involves the appropriate retention of things thrown up by chance. I agree with Worthington that doctrinal distinctions between chancery and common law ought to be removed where they are unnecessary and unhelpful, but I see a green spot in the retention of the idea of ‘unconscionability’. It no longer has anything to do with moral conscience – the language has already evolved from conscience in the abstract to unconscionable conduct defined according to particular circumstances. ‘Unconscionable’ is nowadays just a word that we have for the equity we need. It serves better than the language of ‘reasonableness’. The language of ‘reasonableness’ is good, but reasonableness has already taken on too many tasks in the law. Unconscionability has the unique task of restraining abuse of legitimate rights, powers and entitlements and we will do well to retain unique language to describe this unique function. There is, in addition, a special potential in the language of ‘unconscionability’ to open the judge’s ear to hear languages other than lawyers’ languages – the same is true of the words ‘equity’ and ‘charity’, as we saw in chapter one. If lawyers are permitted to sanitise legal language by cutting it off from its cultural context and historical origins, the hope that the law will hear and respect other stories and other languages will be all but crushed. Jonathan Swift satirised lawyers in Gulliver’s Travels for having ‘a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written’.11 Assuming that this criticism is still a valid one, the obvious solution would be to turn the law’s language into one that we all fully understand. The language of ‘reasonableness’ presents itself as a candidate, but there is no guarantee that lawyers’ interpretation of such a vague term as ‘reasonableness’ will correspond to that of non-lawyers. In any case, the conformist approach will not work for the language of equity. For the purpose of producing an effective internal critique of the law, it is a desirable solution to require lawyers to use a language that they cannot claim fully to understand and cannot claim fully to own. In short, it is good to have an element in legal language that even lawyers have to think about from non-legal points of view. This is one merit of the language of ‘equity’ and ‘good faith’ and ‘spirit of the law’ and ‘charity’ and ‘unconscionability’, and we will see throughout this chapter that it is also a merit of maxims and other aspects of chancery language. Legal language that is not wholly lawyerly has some of the advantages of non-legal imaginative

10 PV Baker and P St J Langan (eds), Snell’s Principles of Equity 28th edn (London, Sweet & Maxwell, 1982) 7. 11 Jonathan Swift, Gulliver’s Travels (1726) pt IV ‘A Voyage to The Country of The Houyhnhnms’ ch 5 (London, Penguin Popular Classics, 1994) 276.

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Chancery Script literature: ‘it expands one’s sympathy, it complicates one’s sense of oneself and the world, it humiliates the instrumentally calculating forms of reason so dominant in our culture’.12 My objection to Worthington’s proposal to replace chancery and common law language with a new integrated language is as much an objection to the process proposed as to the outcome it will produce. The route she offers to reform is one which seems to me to be insufficiently sensitive to natural modes of linguistic development. This is how I interpret her observation that the orthodox language that distinguishes equity from law ‘needs to be discarded in favour of a contemporary evaluation of the current regime’.13 If the language of the current regime is to be evaluated fairly, it cannot be discarded before the evaluation takes place; it should not be prejudged and rejected before we have the chance to assess the merits of the alternatives. Quite apart from the logical error, the proposal to discard orthodox language with a view to evaluating the regime as a whole suggests a method of reform quite inconsistent with English legal culture. Worthington does not intend to be ‘revolutionary’, but she does appear to hold a radical faith in the logical potential of legal language. She does not see that in the matter of law reform one is never replacing lies with logic, but merely replacing one more or less embedded fiction with another. If the project to modernise legal language ever descends to erasing equitable language out of established property institutions such as the trust and replacing it with a new vernacular, we will not reduce lawyers’ linguistic imperium but strengthen it. We will also do no service at all to the need for predictability and certainty in laws and rights in property. This is not to say that change should not be undertaken on a case by case basis – that would be a moderate and in that sense an equitable way to reform. The main plank of Worthington’s argument is that it makes no sense for one jurisdiction to have two sets of rules to perform the same practical functions – one set developed in chancery and one set developed at common law. That must be right, but the argument casts no doubt on the need for the sort of equity which will unsettle rules when they become out of date and which will restrain the strict enforcement of rules and rights where enforcement would be unjust in particular contexts in the light of all the circumstances (including such circumstances as the particular relationship between the parties and their particular conduct). This sort of equity does not oppose rules with other rules, but with a principle of restraint which is neither rule-bound nor unruly. Worthington seems to favour a system that has broad judicial discretions built into it.14 This is welcome, because it suggests that whatever integrated system she has in mind is not an integrated system in a rigidly inflexible sense. Systems of law which claim to be fully integrated to the extent of excluding discretion are always to be 12 13 14

JB White, ‘Law and Literature: No Manifesto’ (1988) 39 Mercer Law Review 739, 741. Above n 5 at 307. Ibid at 305.

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The Future of Chancery Language in English Law regarded with suspicion. We should bear in mind the wisdom of the maxim summum jus, summa injuria.15 One wit commenting on that maxim observed that: ‘should any one complain of the imperfection of our law…point out that in its integrity it is even more hurtful’.16 The sort of equity that I have in mind is not a system of chancery rules established in opposition to the common law rules, but an ethos which is cultivated in judges that will encourage them to bend routine rules in favour of better justice whether the rules have their origin in chancery or the common law. The sort of equity that I have in mind is also an art which is cultivated in judges to enable them to know when and how far it is appropriate to bend the routine rules. On the one hand, I am simply defending the exercise of judicial discretion of the sort which Sir Edward Coke described as a science of understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.17

Except, on the other hand, I do not consider that judicial discretion can ever be truly just if it is exercised as ‘a science’ free of ‘affections’.18 Personal prejudice and bias must be set aside, of course, but there is no need for a judge to set aside his or her humanity (or for us, as judges, to set aside ours). In 1973, Noel Dermot O’Donoghue wrote that: There is a sense in which the law is inhuman, but the law beyond the law is entirely human, and the judge who takes account of it is simply thinking in human terms as well as legal terms…his intuition of what it is to be human is uniquely important. The law beyond the law is simply the law of his own humanness, an intuition of the human in himself which demands great lucidity and humility.19

There are gems at the heart of this passage of text. They are buried within undesirable antinomianism (‘the law is inhuman’) and impractical natural law idealism (‘the law beyond the law is entirely human’ – it is better to oppose posited law to something other than law), but the gems are worth mining for. They are the priceless observations that ‘intuition of what it is to be human is uniquely important’ to a judge and that this demands ‘humility’. It is when we

15

‘The extremity of law is the height of harm’. CJ Darling, Scintillae Juris (London, Stevens and Haynes, 1889) 121–22. 17 Rooke’s case (sub nom Rooke v Withers) (1598) 5 Co Rep 99b in the Court of Common Pleas. 18 On the affective or passionate dimension of law, see WJ Brennan Jr, ‘Reason, Passion, and the Progress of the Law’ (1988) 10(3) Cardozo Law Review 3–23; SA Bandes (ed), The Passions of Law (New York, NYU Press, 1999); MC Nussbaum, Hiding from Humanity: Shame, Disgust and the Law (Princeton, Princeton University Press, 2004). For an argument that impartial public justice is progressed by a properly understood moral sentiment, see SR Krause, Civil Passions: Moral Sentiment and Democratic Deliberation (Princeton, Princeton University Press, 2008). 19 ND O’Donoghue ‘The Law beyond the Law’ (1973) 18 American Journal of Jurisprudence 150–64, 164. 16

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Chancery Script conceive juridical equity as a humane art practised with an ethic of humility that we connect equity within law to equity beyond.

Bending without Breaking The search for the green spot of equity in chancery readily yields examples of the judicial art of bending formal constraints without breaking them. Chancery’s enforcement of the ‘restrictive covenant’ supplies our first example. The common law rule of privity of contract provides that the burden of a promise will only be enforced against the person who made it. It is an eminently sensible general rule, but it can work hardship in particular cases. One such case is where a purchaser of freehold land covenants (promises in the purchase deed) that he or she will not build on the land, but then sells it as ‘development land’ to a stranger who, not being a party to the original covenant, is not bound by it. The injustice of this arrangement is aggravated by the fact that the original purchaser will have acquired at a price which took into account the restriction against building, but will have sold it on (as ‘development land’) at a much higher price. The original covenantor is thereby able to make a great profit by relying on the common law’s strict refusal to enforce a private promise against a third party. One might say that this is simply commercial sharp practice – a regrettable but inevitable fact of life, but nothing that the law should be concerned with. It is true that the courts normally take this sanguine view, but where a regrettable fact of life would not have occurred but for the strict nature of the law, equity should intervene to correct it. This is why, in the 1848 case Tulk v Moxhay, Lord Chancellor Cottenham adjudged that ‘nothing could be more inequitable’20 than the species of sharp practice I have just outlined. His Lordship resolved henceforth to enforce restrictive freehold covenants against third party purchasers of the land subject to the restriction, even though the purchaser in such a case has no direct contract with the covenantee. If the chancellor had resolved to enforce all covenants against third parties he would have broken the common law rule of privity of contract, but by limiting equity’s intervention to freehold covenants, and only to those which are ‘restrictive’ or ‘negative in substance’ (and which therefore put the stranger to no new expense) he merely bent the common law rule. It might be objected that a stranger could lose a great deal of money if, by the time he or she discovered the restriction, the land had already been purchased at a high price with the intention of building on it. The Lord Chancellor, mindful that equitable innovation should not cause new injustice, held that a restrictive covenant will only bind a purchaser who had notice of it prior to purchase. The end result is that the common law rule of privity of contract remains intact for general purposes, but equity has corrected the rigidity of the rule to achieve more perfect justice in the particular type of case under discussion. It is quite likely that 20

Tulk v Moxhay (1848) [1843–60] All ER Rep 9.

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The Future of Chancery Language in English Law this ‘freehold restrictive covenant’, born in 1848, is the ‘child’ of chancery that Lord Denning had in mind in his 1952 lecture ‘The Need for a New Equity’ when he suggested that equity had no child then living which was ‘not at least 100 years old’.21 This child of equity has survived and thrived for this reason – the judge who created it intervened in the interest of restraining unconscionable conduct, but from the outset he set fair and reasonable bounds on its operation. The children of equity, like all children, are most free when their freedom is kept within appropriate bounds. Another example of the equitable art of bending without breaking is provided by the decision of the Court of Appeal in the much more recent case of Shah v Shah.22 The case concerned a statutory provision which provides that a deed is valid if it is signed in the presence of a witness who attests the signature.23 If somebody signs a document and represents that it was validly attested, when in fact there was no attesting witness present when the document was signed, the letter of the law is clear – the document is not a deed. The question then arises whether the signatory should be permitted to rely on this technical failure of legal form in order to escape obligations which he had undertaken by the formally invalid document, and which would certainly have been binding on him if the document had been valid as a deed. The Court of Appeal held that the signatory in such a case should be prevented (‘estopped’) in equity from insisting on the strict letter of the statute. By reading the statute equitably (according to its substantive intent) the statutory rule could be bent so as to render formal attestation of the signature non-essential, but the rule would not be broken – the signature itself would still be required. As Pill LJ said: The public interest…is in the requirement for a signature….It should not permit a person to escape the consequences of an apparently valid deed he has signed, representing that he has done so in the presence of an attesting witness, merely by claiming that in fact the attesting witness was not present at the time of signature.24

It is worth noting, in anticipation of what will be said in future chapters about the essentially fictional nature of law and property law in particular, that we are entering an age of electronic conveyancing in which even the deed itself, a leading character in the land law plot, will ‘become a mere fiction of statute’.25

Chancery Language The language of equity as developed in chancery is still in many respects distinctive compared with the language of common law, and to demonstrate this 21 22 23 24 25

A Denning ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1, 2. Shah v Shah [2001] 3 WLR 31 (CA). Law of Property (Miscellaneous Provisions) Act 1989 s 1(3)(a)(i). [2001] 3 WLR 31 para [30] (CA). K Gray and SF Gray, Land Law 5th edn (Oxford, Oxford University Press, 2007) 148.

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Chancery Script it will be convenient to consider chancery language in four clusters – maxims, remedies, doctrines and property. We will see that equity’s maxims open up a linguistic portal through which ideas of justice may enter the law without having to show that ‘ruly’ nature which is the usual passport of entry. We will see that equity’s remedies are distinct from common law remedies, and that some of them (including injunction and specific performance) have no common law analogue. We will also find that equity’s doctrines have a distinctively imaginative quality. Finally, we will see that equity’s idea of property combines with the legal idea of title in a distinctively metaphysical way. It cannot be denied that the language of juridical equity is in many respects similar to other legal language, but this only serves to make distinctions between them all the more informative of the nature of true equity. It will be useful to commence with a concrete example of the way in which these four clusters of chancery language occasionally work together. We will see that they do not combine in any routine way. It is not the case, for example, that one necessarily starts with maxims, then develops doctrines, then grants remedies and then recognises property – although such a linear sequence has a certain logical appeal. Our case study is Oughtred v IRC.26 The case concerned 200,000 shares in a private company which were held on trust for Mrs Oughtred for life, thereafter for her son absolutely. Mrs Oughtred also owned 72,700 shares outright. In order to avoid estate duty (an inheritance tax) which would become payable on the 72,700 shares on Mrs Oughtred’s death, mother and son entered into an oral agreement to exchange their interests. By that agreement, Mrs Oughtred promised to transfer the 72,700 shares to her son, and he in turn promised to transfer his remainder interest in the 200,000 shares to his mother. Two documents of transfer were executed at a later date to confirm both sides of the exchange. The Inland Revenue argued that the later formal document recording transfer of the 200,000 shares was a ‘conveyance on sale’ within the Stamp Act 1891 and therefore attracted ad valorem stamp duty (a tax on wealth transferred by documents) on the remainder interest given by the son to his mother. Mrs Oughtred’s counter-argument was that her son’s equitable interest in the 200,000 shares had been fully transferred to her by the earlier oral agreement so that no value had passed to her under the later formal document of transfer, with the result that no stamp duty was payable. The sequence of her argument is set out below. It is a rather long, but not convoluted, argument. There are a number of reasons for setting it out in full. The first is to show the interplay of chancery language (Mrs Oughtred’s argument moves from a remedy to a maxim to a species of equitable property, all underpinned by the doctrine of unconscionability); the second reason is to show how complex the argument can sometimes be that one has to employ to escape the law’s routine requirement that wealth of this sort must be transferred by a formal (and ‘stampable’) document;

26

Oughtred v IRC [1960] AC 206.

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The Future of Chancery Language in English Law and the third reason is to show that equity operates even against the official owner of ‘equitable’ property under a trust (the son in this case) to deem that the property ought really to be held for another party. The last point is especially significant, because it shows that modern equity restrains unconscionable abuse of general rights even if those rights relate to, and therefore fundamentally arise from, property that is ‘equitable’ only in the historical sense of having its origins in the old Court of Chancery. This shows us, in short, that juridical equity is no longer limited by technical distinctions between chancery and common law and is directly concerned to restrain abusive reliance on rules in general. Here then is a summary of Mrs Oughtred’s argument as her lawyer might have put it: The relevant shares are shares in a private company and are therefore practically unique in the sense that it will not be possible to buy the same shares on the open market. It follows that the general remedy of common law damages will be inadequate to remedy a breach of the oral agreement to transfer the parties’ respective interests in the shares, and from this it follows that it would be inequitable (the chancery term of art is ‘unconscionable’) for either party to offer mere damages on the particular facts of this case. The court therefore has a discretion to decree specific performance of the agreement27- ‘specific performance’ being an equitable remedy that requires the agreement to be carried out. By a peculiar imaginative turn, equity considers a specifically performable agreement to be an agreement that is performed the moment the agreement is made, in accordance with the maxim ‘equity sees as done that which ought to be done’, so equity treats beneficial ownership of the parties’ respective beneficial interests in the shares as transferred the moment the parties entered into the specifically performable agreement to transfer them. Therefore, from the date of the oral agreement, the son is no longer regarded, in the eyes of equity, as the beneficial owner of the remainder interest in the 200,000 shares and Mrs Oughtred is no longer considered to be absolutely entitled to the 72,700 shares. On the contrary, in equity each party is considered bound to hold their original interests for the other. It follows that the parties hold their original interests ‘on trust’ for each other, because when an asset (even, as in the son’s case, a beneficial interest under an express trust) is officially held by one person, but is held in equity for the benefit of another person, the official owner is said to hold the asset under a ‘constructive trust’ (a trust ‘constructed’ to restrain the official owner from unconscionably asserting their official ownership against the person whom equity deems to be the owner). Mrs Oughtred’s argument concludes by referring to a statute which says that a constructive trust is valid without formal documentation.28 In summary, her argument is that they have transferred their interests without writing and without writing there is no document to stamp and no ‘stamp duty’ to pay.

Despite the ingenuity of this argument, it failed. An element of the factual matrix not relied on in Mrs Oughtred’s argument was that the parties executed two formal documents of transfer at a later date to confirm both sides of the informal exchange. The House of Lords seized on this as the single most significant point in the whole story. Their Lordships held that, even if a constructive trust had 27 28

The ‘discretion’ is in practice exercised almost routinely. Law of Property Act 1925 s 53(2).

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Chancery Script been created, the parties had intended the later formal documentation to be part of the transaction and it should be assessed to ad valorem stamp duty. Their Lordships considered the oral agreement to exchange interests in the shares to be analogous to a simple case of a contract for the sale of land. (Land, like private company shares, is considered to be unique, and a constructive trust is said to arise as soon as parties to the sale of land contractually agree to the sale, but the formal deed that completes the formal transfer of legal title to the land has always been treated as stampable ad valorem.) Thus the walls of legal formalism withstood an assault by equity’s whole arsenal. Lord Radcliffe dissented. He argued that Mrs Oughtred had not needed to call for the subsequent written instrument of transfer. She could simply have called on the trustees to transfer their bare legal title to the 200,000 shares to her. A later decision suggested that Mrs Oughtred’s argument had been correct.29 Mrs Oughtred’s argument would probably have been successful if she and her son had left their agreements on an informal footing. Their mistake had been to confirm the agreements in formal documentation. All their subsequent sophisticated attempts to argue against form were doomed to fail because they (or, more accurately, their lawyers) had, out of habit, resorted to formality.

Maxims When Simon Gardner observed that maxims have ‘a peculiarly Delphic quality’, that they are ‘grandly unqualified…acknowledging no authority but transcendent wisdom’,30 he was echoing opinions that had been expressed in the early modern period by two of the most eminent jurists within the English jurisdiction. Sir Francis Bacon referred to maxims as ‘short dark oracles’31 and considered them to be especially useful in the education of law.32 Christopher St German wrote that ‘every one of [the] maxims is sufficient authority to himself ’ and even went so far as to say that ‘it is not lawful for any that is learned to deny them’.33 He claimed, in other words, that maxims accord with an innate law of wisdom. Bacon would later say something similar in A Brief Discourse Upon the

29

Neville v Wilson [1996] 3 WLR 460 (noted Watt [1997] Nott LJ 86). S Gardner, ‘Two Maxims of Equity’ (1995) 54(1) Cambridge Law Journal 60. 31 Francis Bacon, Maxims of the Law (c 1597; printed 1630) preface. Bacon might have been inspired by William Lambarde, who referred to ‘the helpe of God which speaketh in that Oracle of Equitie’ (W Lambarde, Archeion, or, A discourse upon the high courts of justice in England (1591) (revised 1598) (London, printed by E P[urslowe] for Henry Seile, dwelling at the Tygers-head in St Pauls Church-yard, 1635) 71. 32 DR Coquillette, ‘“The Purer Fountains”: Bacon and Legal Education’ in JR Solomon and CG Martin (eds), Francis Bacon and the Refiguring of Early Modern Thought (Aldershot, Ashgate, 2005) 145–72, 152–53. 33 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England etc (London, Treverys, 1530) (revised reprint, London, Atkins, 1687) ch 8. 30

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The Future of Chancery Language in English Law Commission of Bridewell (c 1587):34 ‘The Maxims are the foundations of the Law, and the full and perfect conclusions of reason’.35 This aptly ‘maximal’ view of maxims prevailed into the middle of the seventeenth century, when maxims were still treated as more authoritative than case law,36 but by the early part of the eighteenth century the tide had turned in favour of the authority of case precedent, as indicated by the title of Richard Francis’ Maxims of Equity, Collected from and Proved by Cases.37 In the sixteenth century, St German had referred to maxims as a ‘ground’ of the law of England. There is some truth in this, but it does not follow that maxims are the principia (or, to use a tautology, the ‘first principles’) from which chancery equity was first created. Pomeroy makes this mistaken assumption when he describes equity’s maxims as ‘the fruitful germs from which…doctrines and rules have grown by a process of natural evolution’.38 I prefer the suggestion made by the editors of Snell’s Equity that maxims are ‘trends’,39 since this suggests a more negotiable relationship between maxims and judgment and decided cases. The problem with St German’s conception of maxims is that it would deny the possibility of inventing new maxims by consolidating principles as they emerge from cases. A merit of allowing new maxims is that it would allow a statement to be made experimentally by any judge at any level of any court which does not depend on the authority of precedent and which is exempt from compliance with established doctrine. A maxim places grit in the oyster. It is an irritant which might be ignored and washed away, but which might develop into a pearl. I cannot agree with Charles E Phelps’ suggestion that: ‘Maxims are useful as standards of weight and measure by which the bearing and effect of circumstances in proof can be tested and estimated’.40 A standard of weight and measure is the very last thing that a maxim provides. The appeal of maxims, so far as judges are concerned, is that they are capable of bearing whatever weight the judge chooses to ascribe to them. Maxims are not commensurate with rules and cannot be arranged, as rules can, in any hierarchy in which one maxim is acknowledged to be superior to any other. If love is a guiding star ‘[w]hose worth’s unknown, although his height be taken’,41 a maxim is a guiding light that has most worth precisely because its height is unknown – although (to borrow from Bacon) it will shed no light at all if it is allowed to ascend too high. The

34 J Spedding, RL Ellis and DD Heath (eds), The Works of Francis Bacon (14 vols) (London, Longmans, 1857–74) vol vii, 509. 35 Quoted in PH Kocher, ‘Francis Bacon on the Science of Jurisprudence’ (January 1957) 18(1) Journal of the History of Ideas 3–26, 10. 36 R Cotterrell, The Politics of Jurisprudence (London, Butterworths, 1989) 24, citing JP Sommerville, Politics and Ideology in England 1603–1640 (London, Longman, 1986) 94. 37 London, 1727. 38 JN Pomeroy, A Treatise of Equity Jurisprudence (in three volumes) vol I (San Francisco, AL Bancroft and Co, 1881) 390 (para [360]). 39 Baker and Langan (eds), Snell’s Principles of Equity, above n 10 at 28. 40 CE Phelps, Juridical Equity (Baltimore, M Curlander, 1894) §I 85. 41 William Shakespeare, Sonnet 116.

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Chancery Script maxim ‘equity sees as done that which ought to be done’, for example, could potentially open the door to the total subversion of general law by particular morality if taken too far. Simon Gardner also observed that maxims come ‘wrapped…in metaphor’.42 A good example is the maxim ‘He who comes into equity must come with clean hands’. Dickens appears to allude to it when he writes that Jarndyce and Jarndyce ‘stretched forth its unwholesome hand’ (1). Dickens might also have had a specific biblical reference in mind.43 Of course, the ultimate source of the maxim is the religious demand for ritual cleanliness and the maxim still has ritual cleanliness in mind, but of a juridical kind. In the modern law of equity a claimant will not be barred from relief by moral or private ‘uncleanliness’ alone – there must be legal or public ‘uncleanliness’44 (there must, in Shakespeare’s phrase, be ‘civil hands unclean’).45 A great many maxims rely on the ‘personification’ sub-set of metaphor by which equity is imbued with human characteristics. Examples include ‘Equity follows the law’; ‘Equity sees as done that which ought to be done’; ‘nullus recedat a curia cancellariae sine remedio’46 (and its twin ‘Equity will not suffer a wrong to be without a remedy’, which is rarely, but more accurately, expressed as ‘equity will not suffer a right to be without a remedy’); ‘Equity looks to the intent rather than to the form’; ‘Equity imputes an intention to fulfil an obligation’; ‘Equity acts in personam’; ‘Equity does nothing in vain’; ‘Equity will not assist a volunteer’; ‘Equity abhors a forfeiture’; ‘Equity abhors a vacuum in ownership’ and ‘Equity will not allow a statute to be used as an instrument of fraud’. The maxim ‘delay defeats equities’ featured personification in an earlier formulation, where it was ‘equity regards length of time’.47 More prosaic maxims sometimes bear a passing resemblance to rules, for example: ‘Where the equities are equal, the law will prevail’ and ‘Where the equities are equal, the first in time shall prevail’, but their status as maxims is confirmed by the fact that they are effective even though they have the potential directly to conflict with each other and even though there is no third statement at hand to resolve the conflict. The common law has maxims too, but the close association between maxims and equity

42

‘Two Maxims of Equity’, above n 30. Susan Shatto indicates a connection between Dickens’ line and the book of Job (1:11) where Satan invites God to stretch out his hand to strike everything that Job has. (S Shatto, ‘A Commentary on Dickens’s Bleak House’ (Dissertation, University of Birmingham, 1974). 44 Dering v Earl of Winchelsea (1787) 1 Cox 319. 45 William Shakespeare, Romeo and Juliet (prologue, line 4). All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated. 46 ‘Nobody leaves the Chancellor’s court without a remedy’. 47 Only the monarch was permitted to bring an action regardless of time, on the quaint assumption that the monarch was the busiest person in the land and should not be considered negligent. On equity’s doctrine of dilatoriness, the so-called doctrine of ‘laches’, see G Watt, ‘Laches, Cause of Action Estoppel and Election’ in P Birks and A Pretto (eds), Breach of Trust (Oxford, Hart Publishing, 2002) 353–77. 43

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The Future of Chancery Language in English Law developed and thrived precisely because maxims supply a language, having its source in ecclesiastic and classical thought, which has the capacity to conflict and challenge the mainstream of legal rules. Of the equitable maxims in common use, only a few have not been mentioned. One is the maxim, ‘there is no equity to perfect an imperfect gift’ − which adds very little to the maxim ‘equity will not assist a volunteer’.48 The maxim ‘equity will not assist a volunteer’ reveals equity’s traditional respect for the giving of money (or entering into marriage)49 in consideration of a contract. Nowadays we think of consideration as a mainstay of the common law of contract, but Victoria Kahn rightly observes, citing Simpson, that ‘[i]n mandating the consideration of circumstances, the doctrine of consideration amounted to a doctrine of equity’.50 It is a feature of English law that it refuses to enforce a bare promise (nudum pactum). Words of promise are not enough, there must be something promised ‘in consideration’ to show that the words are to be taken seriously and that there is substance and meaning to the words. There must be exchange of something more tangible than mere promises. Equity has a pragmatic concern for tangible justice, it is not airily idealistic. Consideration is an equitable element which has become embedded in the common law.51 The maxim ‘he who seeks equity must do equity’ is nothing less than chancery’s version of the ‘golden rule’ of the New Testament: ‘do unto others as you would be done by’.52 Those who seek equity’s remedial assistance do not seek it ‘as of right’. Equitable remedial assistance is discretionary. This allows the court to deny a remedy if it is not satisfied that justice will be done in all the circumstances. Spence tells us that during the reigns of the Tudors and Stuarts, the chancellor would sometimes use the cause at hand to compel a Christian compact between the parties. Thus in one case, Lord Chancellor Rich (1547–51) ordered the plaintiff to kneel and ask forgiveness of the defendant.53 Thankfully, the maxim no longer strays into matters of private conscience, but it still proves extremely useful in attaining practical justice. In one case a pop musician sought rescission of a contract with his manager on the ground that when he was a young artist he had entered into the contract on unfavourable terms due to the manager’s undue influence. He was successful and the court awarded him

48 A ‘volunteer’ is one who provides no consideration for a promise such as would make it a binding contract in law; accordingly the volunteer claims the benefit of a promise that was made ‘voluntarily’. 49 There is such a thing as ‘marriage consideration’ (see eg, Pullan v Koe [1913] 1 Ch 9 (Ch)). 50 V Kahn, Wayward Contracts (Princeton, Princeton University Press, 2004) 46 citing AWB Simpson, A History of the Common law of Contract (Oxford, Oxford University Press, 1987) 328, 381–85, 390. 51 For a literary perspective on the historical development of consideration at common law and equity see B Kreps, ‘Contract and Property Law in The Devil is an Ass’ (2001) 8 Ben Jonson Journal 85–122. 52 Matthew (7:12). 53 Crosse v Watts 3 & 4 Edw VI fol 44. G Spence, The Equitable Jurisdiction of The Court of Chancery (in two volumes) vol I pt II (Philadelphia, Lea and Blanchard, 1846) 422–23, fn (f).

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Chancery Script back-payment of royalties which he would have received under a fair contract. The court recognised, though, that the manager’s work had contributed greatly to the artist’s success and, applying the maxim, ordered that the award of royalties should to some extent be offset by the award of a quantum meruit (‘a sum deserved’) in favour of the manager.54 The maxim ‘equality is equity’, which was once expressed more poetically as ‘equity delighteth in equality’,55 appears at first sight to write a communist manifesto into the heart of chancery script. In truth, the maxim has very limited application. It applies, for example, where an asset is left by will to be shared by four people but without specifying the size of their respective shares: quarters will be presumed. In chancery, equality is a justice of last resort. The attitude of the judges seems to be similar to that of Plato, who considered the mechanistic equality of the scales to be a ‘sort of justice’ to be resorted to only where there is no opportunity for the better justice which gives to each according to his or her due.56 Two maxims with an especially metaphysical quality call for closer attention. They are ‘equity sees as done that which ought to be done’ and ‘equity looks to substance not form’. ‘Equity sees as done that which ought to be done’ is the maxim we encountered in the Oughtred case. We saw that an obligation to transfer an equitable interest in shares at a future time was regarded as having already been fulfilled, resulting in a sort of legal ‘double time’.57 The maxim requires two ‘realities’ to be maintained simultaneously in the mind’s eye: a legal reality in which the obligation remains to be fulfilled, and an equitable reality in which it is deemed to have been already fulfilled. The maxim defies the philosopher’s rule that one should not confound ‘ought’ with ‘is’. It is surprising that it has survived. Lord Thurlow called it a ‘cant expression’ and considered that it ought to have been abandoned.58 It survived by confining itself to a limited sphere of operation. Chancery equity does not see as done that which ought to be done according to any ideal of morality or natural law – it merely sees as done that which ought to be done according to posited law. This does not mean, however, that the maxim has resigned itself to promoting ‘that which ought to be done’ in the sense of ‘that which follows the proper routines’. In Bleak House, Dickens satirised this highly formalistic and attenuated sense of ‘ought’ (and might even have been parodying the pretensions of the maxim) when he took his readers into the Court of Chancery and observed that ‘the Lord High Chancellor

54

O’Sullivan v Management Agency Ltd [1985] QB 428 (CA). Petit v Smith (1695) 1 P Wms 7, 9 (Somers LC). His actual words were: ‘equity did delight in equality’. 56 See eg, Jones v Maynard [1951] Ch 572 at 575 (Vaisey J). On Plato’s attitude to the justice of the scales, see ch 4 at 164. 57 A phrase which has been applied to the dramatic device (popular with Shakespeare and his contemporaries) by which plot lines on different timescales were played simultaneously. See M Buland, The Presentation of Time in the Elizabethan Drama (New York, Henry Holt, 1912). 58 Pulteney v Lord Darlington (1783)1 Bro C C 223, 237. 55

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The Future of Chancery Language in English Law ought to be sitting here – as here he is – with a foggy glory round his head’ (1) (emphasis added). The passage proceeds to repeat the same phrase with minor variations to produce a gradatio from the Chancellor’s high throne down to the pit of the court: [S]ome score of members of the High Court of Chancery bar ought to be – as here they are – mistily engaged…the various solicitors in the cause…ought to be – as are they not? – ranged in a line, in a long matted well (but you might look in vain for truth at the bottom of it. (1)

The repetition of the move from ‘ought’ to ‘is’ heightens the sense that the thick chancery fog is parting every now and then to reveal the routines of the court being carried out as expected. However, contrary to appearances, the equitable maxim actually contemplates a non-routine sense of ‘ought’. Its main practical import is to require certain contracts to be specifically performed, which the routines of the law would permit to be broken on payment of monetary damages. Juridical equity will, however, only enforce a promise where in the particular case it would be unconscionable to allow the promisor to escape from it. Such cases often involve unconscionable reliance on the general common law right to pay damages for breaching a contract instead of performing it. Juridical equity will not enforce a promise that is not legally binding. It will not enforce a merely moral obligation to keep a promise. In Re McArdle,59 for example, a testator left his residuary estate on trust for his widow for life, remainder to his five children in equal shares. During the lifetime of the widow, one of the children, Monty, carried out improvements to a farm forming part of the testator’s residuary estate. The testator’s other children then signed a document promising Monty £488 (no small sum at the time) in consideration of the work and improvements that he had carried out. When the widow died the other children refused to accede to Monty’s claim to the £488. The Court of Appeal held that the transfer of the relevant part of the residuary estate would only be effective if Monty (in fact Monty’s widow by this time) could establish that the signed document had been a binding contract or a valid transfer of an equitable interest. The Court held that it was neither. It was held not to be a binding contract because the works of improvement had been completed before the promise, with the result that Monty’s expenditure had not been given ‘in consideration’ of the promise (so-called ‘past’ consideration does not count). Despite this technical bar to enforcement as a valid contract, the document had been intended to take effect as a contract, so the Court refused to construe it as a valid equitable assignment. Lord Evershed MR regretted that the other children had been able ‘to evade the obligation which they imposed on themselves’, but that, he said, ‘is a matter for their conscience and not for this court’.60 Juridical equity is radical from the perspective of general law and conventional from the perspective of the morally 59 60

Re McArdle [1951] 1 Ch 669 (CA). Ibid at 676.

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Chancery Script ideal. Extra-juridical or non-juridical equity is more radically attentive to the ‘ought’, but even then it is not idealistic; it is pragmatically responsive to, and corrective of, the deficiencies of juridical equity and law. As a line from the movie The Magnificent Seven puts it: when a contract is ‘not the kind any court would enforce’ that is ‘just the kind you gotta keep’.61 This ethic was quite lost on the Wilcox family in EM Forster’s Howards End, as the following scene shows. Henry Wilcox is at the breakfast table with his family when he reads aloud the contents of an envelope: ‘A note in my mother’s handwriting, in an envelope addressed to my father, sealed. Inside: ‘I should like Miss Schlegel (Margaret) to have Howards End.’ No date, no signature. Forwarded through the matron of that nursing home. Now, the question is-’ Dolly interrupted him. ‘But I say that note isn’t legal. Houses ought to be done by a lawyer … surely.’ … ‘We know that it is not legally binding, Dolly,’ said Mr. Wilcox, speaking from out of his fortress. ‘We are aware of that. Legally, I should be justified in tearing it up and throwing it into the fire.’62

And on to the fire it went. The maxim ‘equity sees as done that which ought to be done’, informs the doctrines of conversion and re-conversion. By the doctrine of conversion equity regards money as being already converted into that species of property into which it is directed to be converted;63 and, vice versa, it considers assets to be already money where there is a binding obligation that they should be sold. The doctrine no longer applies to trusts of land,64 but when it did still apply to land, Lord Hardwicke described the doctrine in rather poetic terms as one that changes land to money ‘by the transmutation of a court of equity’.65 Three years later, Montesquieu said something very similar in De l’esprit des lois (‘The Spirit of the Laws’): [T]he state is in a prosperous condition when on the one hand money perfectly represents all things, and on the other all things perfectly represent money, and are reciprocally the sign of each other; that is, when they have such a relative value that we may have the one as soon as we have the other.66 (translated, emphasis added)

The striking similarity between this passage and contemporary formulations of the doctrine of conversion in the English Court of Chancery makes one wonder if 61 Spoken by Chris (played by Yul Brynner) in his dialogue with Vin (played by Steve McQueen) The Magnificent Seven (director John Sturges, Metro Goldwyn Meyer, 1960). 62 EM Forster, Howards End (1910) (London, Penguin, 1985) ch 11, 105–06. 63 Fletcher v Ashburner (1779) 1 Bro C C 497 at 499 (Thomas Sewell MR). 64 Trusts of Land and Appointment of Trustees Act 1996 s 3. 65 Guidot v Guidot (1745) 3 Atk 254. 66 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (1748) book XXII ch 1.

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The Future of Chancery Language in English Law Montesquieu became acquainted with the doctrine during the year and a half he spent in England some two decades earlier (he was elected a member of the Royal Society in 1730 and it is well known that his observations on the unwritten English constitution led him to formulate his famous doctrine of the separation of powers). It is more likely, though, that this passage from De l’esprit des lois and the maxim itself were independent reflections on the economic spirit of the times which had its source in the economic theories of John Locke, and in particular his ‘quantity theory’ that the coinage of money should be directly correspondent with its material value in silver and gold.67 The doctrine of re-conversion is based on a different maxim: ‘equity, like nature, does nothing in vain’.68 The doctrine of re-conversion applies to reverse a notional conversion, where conversion would be pointless in practice. According to Snell’s Equity, re-conversion is ‘that notional or imaginary process by which a prior notional conversion is annulled or discharged, and the notionally converted property restored…to its original actual quality’.69 The doctrine of conversion in conjunction with the doctrine of re-conversion shows the extent to which equity is prepared to imagine substance beyond formal appearance. A stack of banknotes resting on a tabletop will, in the eyes of the law, be nothing but a stack of banknotes resting on a tabletop. In equity’s imagination, the banknotes are capable of becoming in substance a wholly different asset – a painting by Picasso, for instance – and returning to the state of being bank notes without apparently altering a jot. This brings us to the maxim ‘equity looks to substance not form’. ‘Substance’ is etymologically the same word as ‘understanding’. Equity seeks to understand the story that external formalism constantly threatens to conceal. In a commentary on the common law ‘Of Husband and Wife’, Blackstone wrote that ‘[b]y marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband’.70 The casual confusion of ‘being’ and ‘legal existence’ is highly revealing of the law’s habit (which we will examine in more depth in chapter four) of reducing the fullness of human life to a ‘legal abstraction’. One effect of the common law doctrine of marriage was that it rendered void any contract entered into between a man and woman in the event of their subsequent marriage, since a single married entity cannot contract with itself. Another effect, much worse, was that the common law considered it impossible for a husband to rape his wife since his flesh is her flesh and

67

R Ashcraft, John Locke: Critical Assessments (London, Routledge, 1991) 282ff. Benson v Benson (1710) 1 P Wms 130. HG Rivington and AC Fountaine (eds), Snell’s Principles of Equity 20th edn (London, Sweet & Maxwell, 1929) 195. 70 W Blackstone, Commentaries on the Laws of England (in four volumes) 1st edn (Oxford, Clarendon Press, 1765–69) book I ch XV. 68 69

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Chancery Script vice-versa. The chancellor had no jurisdiction to intervene in a case of rape,71 but he intervened where he could – and so, looking to substance instead of form, upheld a contract made between a man and woman despite the fact of their subsequent marriage.72 The preceding example shows the potentially great significance of equity’s preference for substance over form, but the maxim itself has largely been restricted to the problem of inappropriate insistence on legal documentary formality. In this aspect the maxim enshrines a principle that was acknowledged in Roman law. Antoninus Pius (emperor AD 138–61) stated that solemn form is not easily altered, but should be adapted where equity demands it.73 Documentary formality is generally speaking useful, even necessary. The student in St German’s Dialogue sets out the following utilitarian defence of the law’s general insistence on documentary formality: [T]he general grounds of the Law of England heed more what is good for many, than what is good for one singular person only…..it should be a hurt to many, if an [formal] obligation should be so lightly avoided by a word.74

And yet, the ‘singular’ person must occasionally be granted relief. So although it was a ‘general maxim’ of the law that a defendant to an action for debt could not plead that he had paid unless he could produce an ‘acquittance or some other writing sufficient in the Law’,75 the chancellor would nevertheless hear other evidence of payment to prevent the creditor from unconscionably relying on the lack of a formal acquittance.76 Nowadays, even formality statutes expressly admit

71 ‘I have no jurisdiction to prevent the commission of crimes; excepting, of course, such cases as belong to the protection of infants…an exception arising from that peculiar jurisdiction of this court’: Gee v Pritchard (1818) 2 Swans 402, 413 (Lord Eldon). 72 Cannel v Buckle (1741) 2 P Wms 243, 244. See generally, S Staves, Married Women’s Separate Property in England (Boston, Mass, Harvard University Press, 1990). For a warning that the rhetoric of just reciprocity (going by the name of ‘equity’) can be used to deny equality between husband and wife see Victoria Kahn’s discussion of William Gouge, Domesticall Duties (London, 1622) 172–74 (V Kahn, ‘The Duty to Love’ in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 243–68 at 250). The fact that equity is not the same thing as equality continues to produce controversy between homesharers (see, for example, Stack v Dowden [2007] UKHL 17; [2007] 2 WLR 831). 73 Etsi nihil facile mutandum est ex solemnibus, tamen ubi aequitas evidens poscit, subveniendum est (Justinian Digest 50.17.183). The English translation is taken from P Landau, ‘Aequitas in the Corpus Iuris Canonici’ (1994) 20 Syracuse Journal of International Law and Commerce 95, fn 6. 74 Dialogue, above n 33, ch 12. 75 Ibid. 76 Ibid. Discussed in Spence, The Equitable Jurisdiction of The Court of Chancery, above n 53 at 347, fn (c). See also, W Barbour, ‘Some Aspects of Fifteenth-Century Chancery’ (1918) 31(6) Harvard Law Review 834–59, 842–43. Unjust denial of an acquittance is treated in Shakespeare’s Love’s Labour’s Lost where the Princess of France complains to Navarre: ‘You do the king my father too much wrong /…./ In so unseeming to confess receipt / Of that which hath so faithfully been paid.’ (2.1.154–57). See L Hutson, Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, Oxford University Press, 2007) 16.

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The Future of Chancery Language in English Law certain equitable exceptions to their own requirements for formal documentation – a fact which was relied on by Mrs Oughtred in the course of her argument considered earlier in this chapter. A common mode of abusing documentary form is ‘mislabelling’. In Locking v Parker the question arose whether a real security in the form of a trust for sale of land was or was not a mortgage. The judge held that it is not for a Court of Equity to be making distinctions between forms instead of attending to the real substance and essence of the transaction. Whatever form the matter took, I am of the opinion that this was solely a mortgage transaction.77

Since the Judicature Acts, this attitude has thrived in all courts – even concerning matters of a traditionally ‘common law’ nature. The courts have, for example, rejected attempts by landlords to escape their responsibilities to tenants by mislabelling ‘leases’ as ‘licenses’. Denning LJ confirmed that in such cases the parties’ relationship is determined ‘by the law and not by the label’.78 That memorable phrase, laden with alliteration and antithesis would have become the touchstone of the law had not Lord Templeman made the same point in terms of a memorable gardening metaphor: The manufacture of a five-pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.79

Shakespeare’s gardening metaphor made the same point with even greater style and simplicity: ‘What’s in a name? That which we call a rose by any other word would smell as sweet’.80 In one case, which has seldom been disturbed since it was decided in 1730, Jekyll MR provides a chancery answer to Shakespeare’s question, and the answer – so far as surnames are concerned – is ‘not much’. The case concerned a legacy given by ‘Mr Barlow of Wales’ to his daughter ‘upon condition that she married a man who bore the name and arms of Barlow’. The daughter married a man called Bateman who had formally changed his name to Barlow shortly before the marriage. The plaintiff, who would have taken the legacy in default, argued that Bateman was from an inferior family and would probably change his name back to Bateman after receipt of the legacy. The Master of the Rolls held that the condition had been complied with, and that any one is free to take up any surname he or she chooses.81 There is something like this tale in Bleak House in Mrs Woodcourt’s excessive pride in her Welsh ancestral name and her corresponding belief that her son is too good for Esther Summerson.82

77 78 79 80 81 82

Locking v Parker (1873) 8 LR Ch App 30, 39. Facchini v Bryson [1952] 1 TLR 1386, 1390. Street v Mountford [1985] 1 AC 809, 819F. William Shakespeare, Romeo and Juliet (2.1.90–91). Barlow v Bateman (1730) 3 P Wms 65, 65–66. Ch 17. Discussed further in ch 5 at 173.

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Chancery Script We will conclude this section with the maxim ‘equity follows the law’. Taken at face value it hardly inspires hope that chancery language will reveal justice beyond law, but when we read beyond the letter we find that the maxim supplies a powerful picture of true equity. Frank Tudsbery was right to conclude, with reference to this maxim, that juridical equity has no jurisdiction beyond its ‘assistance and interpretation’ of law;83 but to understand equity’s potential we need to imagine the breadth of ways in which equity can interpret law and assist it. To say that equity follows the law in no way confines the extent of equity’s potential influence over the law. Equity does not follow the law as the little lamb follows Mary. When equity follows the law it is rather as the shepherd follows the sheep – to drive them on and to steer them with a crook if they go astray. It is not for equity to go ahead of the general law by laying down rules and regulations in territory not previously regulated by law. For example, if it is not yet illegal for a person living alone to own more than one car, it is not for a judge (however well intentioned on behalf of the environment) to employ equity to make it so. Equity should not turn trespasser. It is only where the law has already ventured into a given territory of human life that it is incumbent on equity to supervise the trespasser to ensure that it causes no harm. Sir Anthony Mason, the former Chief Justice of Australia, has argued that equity used to be positioned ‘on the coat-tails of the common law’ but was released by the Judicature Acts to advance ‘beyond its old frontiers’.84 Actually, juridical equity should not be freed quite so utterly as his Lordship suggests. Judges should be encouraged to apply equity more creatively in the assistance of law, but they should not purport to lay down new rules of general application in the name of equity. The regulation of previously unregulated spheres of social life is by definition a function of general and routine law, whether instigated by judges or by Parliament. (We still tend to call this general and routine law by the name of ‘common law’; the adjective ‘common’ is convenient shorthand to describe law ‘of general application’, but it is important to realise that since the Judicature Acts it is really nothing more than a loose label.) Equity is by definition secondary and servant to the law as the shepherd is secondary and servant to the sheep, and yet the shepherd is ultimately the master of the sheep just as equity ultimately prevails when equity and law conflict. This is how I read Lord Hardwicke’s suggestion that ‘when the court finds the rules of the law right it will follow them; but then it will likewise go beyond them’.85 This echoes St German: ‘equity followeth the Law in all particular cases where right and justice requireth, notwithstanding the general Rule of the Law be to the contrary’.86 Equity does not set out to produce an ideally righteous system – it is not utopian – but it sets out to make the system of regular law more

83

F Tudsbery, ‘Equity and the Common Law’ (1913) 29 Law Quarterly Review 154, 157. A Mason, ‘The Place of Equity and Equitable Remedies in the Contemporary Common Law World’ (1994) 110 Law Quarterly Review 238, 239. 85 Paget v Gee (1753) Amb App 807, 810. 86 Dialogue, above n 33, ch 16. 84

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The Future of Chancery Language in English Law just. The metaphor of the shepherd is a helpful one, but it hardly captures the brute power of law and legal thought which it is the task of juridical equity (and the equitable character) to restrain. A better metaphor in that respect is the metaphor of the horse and rider – the general law is the horse and equity is its rider. The rider follows where the horse goes and will steer only if the horse veers too far left or too far right. If the horse maintains a true course, the rider will not steer. As Lord Selborne said immediately prior to the Judicature Acts: equity will decree a remedial award, such as specific performance, ‘only when it can by that means do more perfect and complete justice’ than the common law.87 Samuel Daniel used the metaphor of the horse and rider in his epistle to Sir Thomas Egerton, written shortly before Egerton became Lord Chancellor Ellesmere (who, as we saw in chapter two, was the first Lord Chancellor to preside in chancery after King James I confirmed its supremacy over the courts of common law). Daniel wrote that equity ‘bears an even Rein / Upon the present Courses’.88 He had possibly read William West’s seminal treatise on equity, Symboleography, published around a decade earlier, in which West had written that ‘Equitie is always most firmly knit to the evil of the Law which way soever it bends, whether to clemency, or to severity’.89 West was not suggesting that equity must be exactly identified with law, but merely saying that equity has to keep tight hold of the bridle reins in order to exert its controlling influence over the law. As he says of chancery: ‘this Court bridleth the rigor of the Common Law, by giving actions and exceptions for remedies where by Law none were’.90 The horse does the main work and the rider follows the horse wherever it goes, but the rider is ultimately the master. Bracton said that the law is the ‘bridle’ of the king’s power.91 Equity, in turn, is the bridle of the law. Dickens provides an image to this effect when, in the penultimate chapter of Bleak House, he tells us what became of Sir Leicester Dedlock – that stickler for legal rights and exemplar of akribodikaios.92 He tells us that Sir Leicester ‘may be seen…invalided, bent, and almost blind, but of worthy presence yet – riding with a stalwart man beside him, constant to his bridle-rein’ (66). That man, steering the almost blind figure of the law, is Captain George, who – not wanting to go to law or lawyers on any count – more than any man in the novel (though not every woman)93 exemplifies the character of epieikeia.

87 Wilson v Northampton and Banbury Junction Railway Co (1874) LR 9 Ch App 279, 284 (Selborne LC) (emphasis added). 88 Samuel Daniel, To Sir Thomas Egerton, Knight: Lord Keeper of The Great Seale of England (1603) stanza 18. The Poetical Works of Mr Samuel Daniel etc (in two volumes) vol II (London, R Gosling et al, 1718) 342, stanza 18. 89 W West, The Second Part of Symboleography (1594) references are to the popular 1641 edition (London, Miles Flesher and Robert Young, 1641) 175, section 10. 90 Ibid at section 12. 91 ‘Let him, therefore, temper his power by law, which is the bridle of power, that he may live according to the laws’ (On The Laws and Customs of England vol 2, 306). 92 ‘Strictly just’ (see further, ch 1 at 29, 32 and ch 5 at 103). 93 In ch 5 I will argue that Esther Summerson is the paradigm personification of equity in Bleak House.

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Chancery Script ‘Equity steering’ is ‘equity stirring’.94 Here, then is the perfect image of equity’s constant constraint of powerful and blind law: the rider as equity, eques as aequitas. The roman of equity in law turns out to contain an element of romance in the chivalric mode.

Chancery Doctrine Equitable ‘doctrine’ oscillates over time between more rigid and more relaxed phases. At the time of writing, equitable doctrine is in a relatively relaxed phase. Proprietary estoppel, the equitable liability of strangers for knowing receipt of misapplied trust property and the constitution of express trusts were previously established by reference to very detailed doctrinal probanda (matters to be proved),95 but nowadays the grant of relief seems to turn on broader criteria – and in some cases on nothing more precise than proof of ‘unconscionability’.96 Take the example of proprietary estoppel. Proprietary estoppel is a cause of action that arises in equity to prevent (‘stop’) the legal owner of certain property from denying that another person has, or might have, a proprietary interest in that property. The ‘dealings’ essential to establishing an estoppel are now taken to be a representation made, or an assurance given, by the legal owner to another person under which the latter reasonably expects to acquire some interest in the land and on which assurance he or she has reasonably relied by act or omission in such a way that they suffer a detriment that would make it unconscionable of the owner subsequently to resile from the representation or assurance and to assert absolute ownership of the land. These might sound like rather detailed doctrinal requirements, but they are never permitted to obscure the underlying principle of justice. This point was made by Robert Walker LJ in Gillett v Holt,97 where his Lordship emphasised that ‘detriment’ is ‘not a narrow or technical concept’: ‘The requirement must be approached as part of a broad enquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances’.98 This more flexible approach replaces an earlier approach under which proprietary estoppel had depended on satisfaction of certain fixed probanda including, for instance, proof that the claimant had acted on the basis of a

94

Both words derive from the same Anglo-Saxon root verb styrian (to ‘move’). See, Wilmot v Barber (1880) LR 15 Ch D 96 (estoppel); Baden v Société Générale Pour Favoriser le Développement du Commerce et de l’Industrie en France [1993] 1 WLR 509, Ch D, [1983] BCLC 325 (equitable liability of strangers for knowing receipt of misapplied trust property); Milroy v Lord (1862) 4 De G F & J 264 (constitution of express trusts). 96 See, Gillett v Holt [2001] Ch 210 (estoppel); Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] Ch 437 (equitable liability of strangers for knowing receipt of misapplied trust property); Pennington v Waine [2002] 1 WLR 2075 (constitution of express trusts). 97 [2001] Ch 210. 98 Ibid at 232. 95

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Chancery Doctrine mistake as to their legal entitlement to the land.99 There are though, even at the time of writing, the first indications that the pendulum might be swinging back towards a more strict doctrinal approach to proprietary estoppel.100 We can expect equity’s doctrine to continue to oscillate about the mean in perpetuity. If we ask the question, ‘why do the courts allow the normal requirements of formal contract and land transfer to be by-passed by proprietary estoppel?’ or simply ‘why does proprietary estoppel exist?’, it is hard to resist the conclusion that it exists because the facts which give rise to estoppels frequently retell the archetypal story of the powerful landowner who takes advantage of the vulnerability of a less powerful party. There is no more basic tale of unjust abuse of legal power and it has come to command a hold on judicial sentiment which is as strong almost as its hold on the popular imagination. The facts of the cases read like the plots of novels. Gillett v Holt could itself be the backdrop to a work by Austen, Hardy or Dickens.101 Mr Gillett was twelve years old when Mr Holt (a 38-year-old gentleman farmer) took him under his wing. Mr Gillett left school at the age of sixteen at Mr Holt’s suggestion and began a long career working on Mr Holt’s farm. Mr Gillett’s wife and children became in due course a surrogate family to Mr Holt (who had no immediate family of his own), a fact confirmed by Mr Holt’s frequent assurances (often in public) that Mr Gillett would one day inherit the farm. However, the relationship between the men eventually cooled and ultimately broke down entirely. Mr Holt wrote Mr Gillett out of his will. Mr Gillett then commenced legal action seeking to establish an interest in the farm under proprietary estoppel (claiming, in other words, that Holt should be stopped from denying Gillett’s equitable interest in Holt’s property) on the basis of Mr Holt’s assurances and Mr Gillett’s detrimental reliance on them. The judge at first instance held that Mr Holt’s representation could not be considered irrevocable and that in any event Mr Gillett had suffered no detriment in reliance on them. This decision was overturned. The Court of Appeal rejected any need to show that the assurance was irrevocable and held that, despite the obvious material benefits of Mr Holt’s patronage, it would be detrimental to deny him an interest in the farm because he had forgone the opportunity to educate himself and to make alternative provision for his retirement and old age. A most interesting feature is the detriment that Mr Gillett was held to have suffered when Mr Holt paid for Mr Gillett’s eldest son to be educated at a private school. This 99 See Wilmot v Barber above n 95. For a saucy play on promise and mistaken erection see the conversation between Mistress Quickly and Falstaff in Shakespeare’s The Merry Wives of Windsor (3.5.25–27). 100 Yeoman’s Row Management Ltd v Cobbe [2008] UKHL 55 (HL) (Lord Scott of Foscote) para [28]: ‘Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat. If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so’. 101 The facts of a similar case, Murphy v Burrows [2004] EWHC 1900 (Ch), were described as ‘Dickensian’ by the judge.

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Chancery Script was detrimental because Mr Gillett had another son whom he then felt obliged to educate privately at his own expense. Taken as a whole, the case is evocative of the basis on which the wily Mr Wickham sought to advance his credentials in Pride and Prejudice: My father …gave up everything to be of use to the late Mr Darcy and devoted all his time to the care of the Pemberley property. He was most highly esteemed by Mr Darcy, a most intimate, confidential friend. Mr Darcy often acknowledged himself to be under the greatest obligations to my father’s active superintendence, and when, immediately before my father’s death, Mr Darcy gave him a voluntary promise of providing for me, I am convinced that he felt it to be as much a debt of gratitude to him, as of his affection to myself.102

The etymology of estoppel is the Old French estouppail which was a bung of twisted cloth or fibres employed to plug the flow of liquid. Coke considered it a metaphor for stopping up the mouth of one who would attempt to plead a right in bad conscience.103 It can also be read, like so much of legal language (as we will see in chapter four) as an allusion to the potamic or fluvial metaphor – to the idea that there is, in Shakespeare’s phrase, a ‘stream of regular justice’.104 A party is estopped from asserting a legal right in the regular way when they bung up the stream of justice with their own twisted actions. To prevent unconscionable assertion of strict legal rights where the right-holder has induced another party to expect that strict rights will not be enforced has been called ‘the first principle upon which all Courts of Equity proceed’.105 Unconscionability is sometimes imagined to be a particular equitable doctrine, but it is more correctly understood as the founding justification for the entire equitable jurisdiction in chancery. It survives as a description of the sort of conduct that will justify equity’s intervention. Unconscionability is the precise mischief to which juridical equity is addressed by way of remedy. I say ‘precise’ because equity as developed by the chancellor is more precisely conceived than the equity of the common law courts, which was merely ‘administered on the broad basis that justice must so far as possible be done to the parties who had good ground of complaint’.106 Unconscionability is the particular conduct of relying on the shortcomings of the common law to abuse another. ‘Conscience’ tells us that there is more to justice than that which can be encapsulated within

102 Jane Austen, Pride and Prejudice (1813). The text is RW Chapman’s edition (Oxford, Oxford University Press, 1923) vol I ch 16. 103 Coke Litt 352a. 104 Timon of Athens (5.4.69–70). 105 Hughes v Metropolitan Railway Co (1877) LR 2 App Cas 439, 448 (Cairns LC); Crabb v Arun District Council [1976] Ch 179, 187 (Denning MR). 106 WS Holdsworth, ‘The Relation of the Equity Administered by the Common Law Judges to the Equity Administered by the Chancellor’ (1916) 26(1) Yale Law Journal 1, 15 (citing P Vinogradoff, ‘Reason and Conscience in the Fifteenth and Sixteenth Centuries’ (1908) 29 Law Quarterly Review 373, 379).

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Chancery Doctrine the strictures of the written, formal, general norms of the common law. Conscience tells us that to act justly requires knowledge of law together ‘with knowledge’ (con scientia) of something more than law. Of course, this begs the question ‘with knowledge of what?’ but to begin with it will suffice to know that it is knowledge of something beyond the law. St German’s ‘Doctor’ stated it sufficiently, when he said that conscience is ‘knowledge of one thing with another thing’.107 James Q Whitman identifies an ambiguity between conscience as knowledge of fact and conscience as knowledge of moral urge,108 but this ambiguity dissolves at the level of ‘knowledge with’; and why should it not dissolve. The moral urge is, after all, a fact. Conscience prompts us to search for justice beyond law, and that is a good place to start. Without conscience we might be content to assume that the law is all-knowing in matters of justice, and that law is all we need to know to act justly. In the early modern period, the Court of Chancery came to be concerned with ‘a juridical and not a personal conscience’.109 Shakespeare’s line – ‘policy sits above conscience’ – was the line taken by the law.110 In 1676, Lord Nottingham put it this way: With such a conscience as is only naturalis and interna, this court has nothing to do; the conscience by which I am to proceed, is merely civilis and politica, and tied to certain measures.111

In truth, the line between private and political conscience is not as solid as Lord Nottingham suggests. Dennis R Klinck is surely right to observe that ‘conscientia civilis may not strictly exclude the internal’ and ‘does not comprehensively include the external’.112 It is because the language of conscience is not easily contained within a legal frame that the courts eventually dropped the word ‘conscience’ altogether. Nowadays, juridical equity does not talk of conscience, but of ‘unconscionable conduct’ or ‘unconscionability’. These descriptions cover a wide spectrum of behaviour connected by the common characteristic of exploiting the shortcomings of the general law to inflict harm. This is not to say that the art of addressing unconscionability must be confined to the legal sphere. As conscience once provided the model for equitable restraint within the law, so the juridical art of restraining unconscionability can now provide a model for practising equity beyond the law. This is a green spot in the scheme.

107 Quoted in SK Dobbins, ‘Equity: The Court of Conscience or the King’s Command, the Dialogues of St German and Hobbes Compared’ (1991) 9(1) Journal of Law and Religion 113, 127. 108 JQ Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, Yale University Press, 2008) 106. 109 Pomeroy, A Treatise of Equity Jurisprudence, above n 38 at 47 (para [57]). 110 Timon of Athens (3.2.74). 111 Cook v Fountain (1676) 3 Swans 585, 600. 112 DR Klinck, ‘Lord Nottingham and the Conscience of Equity’ (2006) 67(1) Journal of the History of Ideas 123–47, 132. On the related contemporary divide between private and civil moral sentiment, see Krause, Civil Passions, above n 18.

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Chancery Script A finding of unconscionable conduct ‘is not by itself sufficient to found liability’.113 The courts acknowledge that unconscionable behaviour cannot be defined in the abstract; it can only be understood in connection to the facts of particular cases.114 The question is always whether it would be unconscionable to rely on a general legal right or power in the particular context.115 It might be, morally speaking, ‘in bad conscience’ to assert legal title against a party, or to rely on a party’s (or one’s own) failure to comply with legal formality or to leave a party to their general remedy at law – but unconscionable conduct will only be actionable in court where there are additional factors which call for equity’s relief. Relevant factors will often include a particular relationship to, or particular behaviour towards, the other party. To repeat a simple example: it is not unconscionable, juridically speaking, for the legal owner of land to assert a general common law right to evict a non-owner from his land, but all other factors being equal it is unconscionable to evict a non-owner who has built a house on the legal owner’s land in reliance on the legal owner’s informal promise to allow the builder to occupy the house for life.116 Unconscionable behaviour is faulty behaviour because it causes harm through non-routine reliance on a routine reading of law. If the nature of the defendant’s conduct is wholly routine it would not be unconscionable in the juridical sense. It is the fault in the routine which justifies the intervention of equity to restrain the routine enforcement of the law. To put it in Aristotelian terms, we can say that a fault in routine conduct makes it unduly strict (akribodikaios) to enforce the law routinely. The question ‘what counts as unconscionable conduct?’ begs the supplemental question, ‘how is unconscionable conduct to be restrained?’ Jurists who have answered these questions in the past have limited their analysis to the nature of the wrong which calls for equitable intervention. This limited approach is responsible for the intractable conflict between those who desire to define the relevant wrong narrowly so as to prevent the restraint of unconscionability from becoming something utterly undefined and unlimited – something akin to moral conscience-based intervention – and those who consider that the wrong cannot be limited to definite doctrinal ingredients. My analysis is not limited to the assumed stark choice between tethering unconscionability to certain grounds and allowing unconscionability to fly free. My compromise is to argue that we should not be afraid to let unconscionability leap a little, since there are means to ensure that it does not leap too high. The bounds I have in mind are not institutional, but established by customary conduct. Conduct which is routinely acceptable in life beyond the law should not be termed conduct which is unconscionable in the eyes of equity. My analysis is not concerned solely with the

113 Nicolas Browne-Wilkinson, ‘Constructive Trusts and Unjust Enrichment. Presidential Address of the President of the Holdsworth Club (Holdsworth Club, University of Birmingham, 1991) 7. 114 National Westminster Bank plc v Morgan [1985] AC 686, 709 (Lord Scarman). 115 Royal Brunei Airlines v Tan [1995] 3 WLR 64, 76B–D (Lord Nicholls). 116 See proprietary estoppel, discussed above at 104−106.

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Chancery Doctrine question, ‘does this conduct abuse a legal norm in a particular way that calls for equity’s intervention’, but also asks the question, ‘does this conduct comply with a legal or non-legal norm in a way that prohibits equity’s intervention?’ A leading Australian case describes unconscionability in a way that I would adopt, because, in addition to concern to define the relevant wrong, it also implies that conscience is not unconscionable where it complies with ‘minimum standards of fair dealing’, which I take to mean ‘behaviour considered to be acceptable in the given context’. Deane J opined that unconscionability will commonly involve the use of or insistence upon legal entitlement to take advantage of another’s special vulnerability or misadventure . . . in a way that is unreasonable or oppressive to an extent that affronts ordinary minimum standards of fair dealing.117

If unconscionability is that which affronts ‘ordinary minimum standards of fair dealing’ for the relevant context, it must follow that behaviour that is normally considered fair-dealing in that context cannot be unconscionable. I will illustrate the argument for an upper ‘customary conduct based’ limit on unconscionability by means of three examples.118 The first example appears in the case of Martin v Myers.119 It usefully demonstrates how a party can rely on the normality of their conduct to defend an allegation that they have unconscionably retained another person’s wealth. The facts produce an inheritance drama which might have borrowed elements from Shakespeare’s King Lear and As You Like It. Amy and Edward Myers had lived as husband and wife for many years without it being certain to anyone outside the relationship that they were married. Edward died and Amy remained in the ‘matrimonial’ home for 24 years. When Amy died she left the house to her son, Philip, by will. This action was brought by her four daughters, who claimed that their mother had never been married and had therefore been bound, right up until her death, to hold the house on constructive trust in equity for all her ‘husband’s’ children after his death, with the result that she could not have acquired title to the land by twelve years’ ‘adverse possession’ (colloquially, ‘squatting’) under the Limitation Act 1980. It was held that even though the couple were not married, the mother never became a constructive trustee for her children because her conscience was never affected by knowledge of any entitlement her children might have in the house. Her conduct in remaining in the quasi-matrimonial home was perfectly normal and acceptable for a surviving ‘spouse’ which meant that there was no room to hold her conduct to be unconscionable. As the judge observed:

117

The Commonwealth v Verwayen [1990] 170 CLR 394 at 441 (Deane J). The first two examples are considered in G Watt, ‘Unconscionability in Property Law: a Fairy-tale ending?’ in M Dixon and G Griffiths (eds), Contemporary Perspectives in Property, Equity and Trusts Law (Oxford, Oxford University Press, 2007) 117–37. 119 Martin v Myers [2004] EWHC 1947 (Ch). 118

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Chancery Script [T]he basic principle underlying the imposition of a constructive trust is that the owner of the legal interest should not be entitled to hold property, where the circumstances are such as to make it inequitable or unconscionable for him to do so. There must be factors which ‘affect his conscience’: see per Lord Browne-Wilkinson in Westdeutsche Landesbank v Islington LBC [1996] AC 669 at 705, 709. It seems to me quite artificial to suggest that any such factors affected Amy Myers’ conscience immediately on Edward Myers’s death. She simply remained in her home, as no doubt all her children wished her to do whatever suspicions they might have held as to whether or not there had been a marriage.120

The second example is the pre-contract agreement to purchase land. It is well known that a vendor is permitted to withdraw from a sale of land up until the point that they enter a formal documentary contract to sell. This is despite the vendor giving the customary verbal assurance that he or she will enter into a formal contract and despite any detrimental reliance the purchaser might have suffered in reliance on that assurance. The vendor is not estopped from withdrawing from the sale prior to contract because withdrawing at that stage is not unconscionable,121 and, crucially, it is not unconscionable because such conduct is normal for the context. Of course, this defence of customary conduct will not be available if the vendor gives an express or implied assurance that he will not treat statutory formalities as binding in the usual way, because in such a case the vendor will have acted contrary to custom. The third example is provided by the decision of the House of Lords in Yeoman’s Row Management Ltd v Cobbe.122 A property developer entered into an oral agreement with the owner of a block of flats under which the developer agreed to seek planning permission to demolish and replace it with new houses. A formula was provisionally agreed with regard to price and the division of profits from the development. The developer spent eighteen months acquiring the planning permission, and it was only after planning permission had been obtained that the owner of the block purported to withdraw from the agreement. The developer was not awarded a share of the land under a proprietary estoppel. It was held that the developer had assumed the risk that the owner of the block would withdraw from the agreement. The fact that the owner’s withdrawal could be characterised as being in some sense ‘unconscionable’ did not establish any proprietary entitlement in the land in favour of the developer, because customary commercial practice confirmed the parties’ statutory right to withdraw from an informal contract in a case such as this. As Lord Scott of Foscote stated:

120 Ibid at para [43]. The judge was Nicholas Strauss QC (sitting as a deputy judge of the High Court of Justice, Chancery Division). 121 E Cooke (ed), Modern Studies in Property Law vol 2 (Oxford, Hart Publishing, 2003) 165, 180–81. 122 [2008] UKHL 55 (HL), above n 100.

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Chancery Doctrine It would be an unusually unsophisticated negotiator who was not well aware that oral agreements relating to such an acquisition are by statute unenforceable and that no express reservation to make them so is needed.123

These three examples show that conduct which may appear inferior by some abstract moral standard should not be considered unconscionable in law if it matches an observable objective standard of acceptable conduct. There is, I think, a sense of this in Professor Gray’s suggestion that a ‘community of conscience’ might be reconstructed ‘[b]y engrafting the conscience of community on to existing property relations’.124 (The common law courts introduced an element of communal conscience through the jury, but the Court of Chancery had nothing equivalent.)125 It will suffice for the defendant to demonstrate that his conduct is customary in a given context, even if his conduct does not accord with universal practice in that context and even though some others acting in the same context may disapprove of the defendant’s approach. In this respect the customary conduct defence is similar to the defence that is available to medics accused of professional negligence, where it has been held that a doctor has a defence to a claim in negligence if he or she acted in accordance with a practice which at the relevant time was accepted as being proper by a responsible body of medical opinion skilled in the particular form of treatment in question, even though a body of competent professional opinion might prefer a different technique.126 It is not suggested that the court is required to accept that a particular species of customary conduct inevitably obviates a finding of unconscionability,127 for it must be acknowledged that the ‘ethical standard of our law is often higher than the average morality of the commercial community’128 (a point made in 1908 which rings more true than ever as I write in the midst of the banking crisis of 2008). My argument is that compliance with industry and customary norms ought to raise a presumption against a finding of unconscionability. The more rigorous the independent regulation to which an industry or profession is subject, the harder it should be to rebut the presumption that normal conduct within the industry or profession is acceptable conduct. The essential point is that there is no room for a finding of unconscionability if the defendant’s conduct is consistent with an innocent state of mind: conduct

123

Ibid para [27]. KJ Gray, ‘Equitable Property’ (1994) 47(2) Current Legal Problems 157 at 207; see also, K Gray and SF Gray, ‘The Rhetoric of Realty’ in J Getzler (ed), Rationalizing Property, Equity and Trusts (London, LexisNexis, Butterworths, 2003) 204–80, especially at 238–43, where the authors’ thesis is that property relations with strangers, neighbours and citizens are nowadays referable to norms of ‘rationality’, ‘reasonableness’ and ‘reciprocity’, respectively. 125 See B Meyler, ‘Substitute Chancellors: the Role of the Jury in the Contest between Common Law and Equity’ (Cornell Legal Studies research paper no 06–007, 10 February 2006) available at SSRN: http://ssrn.com/abstract=882829. Cited in Hutson, Invention of Suspicion, above n 76 at 87. 126 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. 127 This echoes the gloss made on the ‘Bolam test’ (ibid) in Bolitho v City and Hackney Health Authority [1998] AC 232 (HL). 128 B Wyman, ‘The Clog on the Equity of Redemption’ (1908) 21 Harvard Law Review 457, 475. 124

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Chancery Script cannot be sufficiently wrong when it is sufficiently right. It is a point made with impressive efficiency by Hans Christian Anderson in his fairy tale The Leaping Match, where the flea, the grasshopper and the frog compete to see which of them can leap the highest. The flea jumps out of sight and the grasshopper jumps as high as the king’s head, but the frog wins when he jumps into the lap of the princess; for as the king says, ‘there is nothing higher than my daughter’.129 Behaviour should not have to be perfect to be immune from the accusation that it is unconscionable – it should suffice that it meets a standard that is recognised as being good enough. The argument that accusations of unconscionability should not exceed outer limits established by custom can be expressed in terms of the metaphor of the bird and the cage. One possibility is to release the bird from the cage into a larger room – in other words to place an outer limit on the extent of its flight. Another, less humane, possibility would be to release equity from the cage but to clip its wings. In Bleak House, Harold Skimpole was a caged bird who still sang even though ‘they pluck his feathers now and then and clip his wings’ (43). It is interesting that the legal philosopher John Gardner uses the metaphor of clipping wings from the other side of the problem, but to essentially the same outcome, when he writes that law ‘puts pressure on justice to be of general application’ and must therefore be restrained: There are some rulings . . .which are not amenable to being rendered as rules; but legal systems, being systems of rules, will tend to insist on trying to render them as rules all the same, a tendency which, for the sake of justice itself, sometimes needs to have its wings clipped. That, as Aristotle explains, is where equity comes into play.130

The principle that customary conduct places an upper limit on unconscionability can actually be found lying at the heart of juridical equity, because the doctrine of notice ‘lies at the heart of equity’.131 The doctrine of notice states that a purchaser of trust property is not bound to hold the trust property on trust for the trust beneficiaries if he carried out customary searches prior to purchase and those searches failed to indicate the beneficiaries’ equitable interests in the purchased property.132 It is interesting that in its original reported formulation, the doctrine of notice was expressed in terms of ‘notice or understanding’.133 Under-standing,

129 Hans Christian Andersen, Springfyrene (1845) ‘The Leaping Match’ (the text is from the English language edition illustrated by William Heath Robinson (London, Constable & Co, 1913) (reproduced by the Folio Society, London, 1995) 258–61, 261). 130 J Gardner, ‘The Virtue of Justice and the Character of Law’ in MDA Freeman (ed), Current Legal Problems 2000: Volume 53 (Oxford, Oxford University Press, 2000) 1, 18. 131 Barclays Bank plc v O’Brien [1994] AC 180 at 195 (Lord Browne-Wilkinson). 132 Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 (Ch D). 133 Rooke v Staples (1577) Cary 76, BL MS. Harg. 281, fo.84, BL MS. These citations are taken from several listed in N Jones, ‘Trusts in England after the Statute of Uses’ in R Helmholz and R Zimmermann (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (Berlin, Duncker and Humblot, 1998) 173, 197.

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Equitable Remedies which is etymologically identical to sub-stance, more clearly indicates the doctrine’s equitable concern to look at the real life facts which underlie the parties’ encounter with the legal fact of the trust. At the outset of this book I observed that a system of general regulation must admit a secondary agency to supervise its practical impact on society. This might suggest that we require a tertiary supervisor to watch over the secondary supervisor and so forth. Lord Kames considered that only general rules can set a ceiling on this infinite regress. In the introduction to his Principles of Equity (1760) he observed that: A court of equity is a happy invention, to remedy the errors of common law, -but this remedy must stop somewhere; for courts cannot be established without end, to be checks one upon another. And hence it is, that, in the nature of things, there cannot be any other check upon a court of equity but general rules.134

We have discovered that there is another way to avoid the problem of infinite regress which does not require equity to be contained by general rules. An alternative is to locate equity’s operation in a zone which lies above the general law but beneath a common (not general, not legal) customary or conventional practice.

Equitable Remedies The purpose of equitable relief is to ‘do more perfect and complete justice’ than would be achieved by leaving the parties to their routine remedies at common law.135 This means that where the common law remedy is monetary damages, as it usually is, the court asks itself: ‘[i]s it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’136 One situation in which common law damages will often be inadequate is where there has been a trespass to land. Overhanging trees and overflying planes seldom cause damage to landowners, and even if a trespass occurs at ground level there may be no damage beyond the bending of a few blades of grass underfoot. It is because the common law has no adequate general remedy for trespass that the court will usually award an injunction against the particular trespasser. The trespasser who re-enters the land in breach of the injunction does not breach a rule, but infringes a prohibition issued against the trespasser personally and may be fined or imprisoned for contempt of court. In previous chapters we have considered the centrality of the injunction to the historical development of chancery and the centrality of prison to a literary appreciation of chancery. Here I will offer some 134 135 136

HH Kames, ‘Introduction’ in Principles of Equity (1760) (Edinburgh, Bell & Bradfute, 1825) 14. See above at 102−3. Evans Marshall & Co Ltd v Bertola Sa [1973] 1 WLR 349 at 379 (Sachs LJ).

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Chancery Script literary reflections on the remedy of specific performance. This remedy operates as if it were, in a sense, an ‘injunction’ to perform a specific contract. The equitable remedy of specific performance may be to legal text what theatrical performance is to dramatic text. Luke Wilson makes this point when he says that ‘the adjustment of the letter of the law by equity in particular cases may be understood as the principle of legal performance (and…theatrical performance as well)’.137 A dramatic text is in theory free to be performed in every possible way or not performed at all, but I would argue that it only becomes a true and just text when it is actually performed in any particular way. A dramatic text which has not been realised in performance is dramatic in name only. Performance produces the dramatic substance of the text, which is its equity. The general law of contract supposes that every contractual promise is, as if it were a dramatic text, free to be performed or not performed at all (if it is not performed, contractual damages will be paid), but only equity insists on performance in certain cases, and it is only because of such instances of ‘specific performance’ that the general law of contract can be regarded as a truly just law. If the courts never compelled performance there would still be true and just performance outside the law in a great many cases (perhaps in most cases) – but so far as the justice of the law is concerned, it can only claim to be generally just to the extent that, through occasional ‘command’ performance, it demonstrates its potential to be particularly just. Shakespeare explores the relationship between promise and performance in the following dialogue between the painter and the poet in Timon of Athens. The dialogue takes place outside the cave of the reclusive Timon, to which the artists have come in the hope of procuring gold: POET: What have you now to present unto him? PAINTER: Nothing at this time but my visitation: only I will promise him an excellent piece. POET: I must serve him so too, tell him of an intent that’s coming toward him. PAINTER: Good as the best. Promising is the very air o’ th’ time: it opens the eyes of expectation. Performance is ever the duller for his act, and but in the plainer and simpler kind of people the deed of saying is quite out of use. To promise is most courtly and fashionable: performance is a kind of will or testament which argues a great sickness in his judgement that makes it. (5.1.12–20)

The dialogue reeks of legal terminology: ‘promise’, ‘intent’, ‘expectation’, ‘performance’, ‘deed’, ‘use’, ‘will’, ‘testament’, ‘argues’ (‘judgement’ and ‘courtly’ also carry legal meanings beyond their non-legal usage). Indeed, the weight of legal terminology, and especially the references to such documentary terms as ‘use’, 137 L Wilson, ‘Ben Jonson and the Law of Contract’ in Kahn and Hutson (eds), Rhetoric and Law in Early Modern Europe, above n 72, 143 at 154; see also L Wilson, Theaters of Intention (Palo Alto, Ca, Stanford University Press, 2000) 81 and L Wilson, ‘Hamlet: Equity, Intention, Performance’ (Fall 1991) 24 Studies in the Literary Imagination 91.

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Equitable Remedies ‘will’, ‘testament’ and ‘deed’, makes the opening line of the extract (‘What have you now to present unto him?’) reminiscent of the standard opening line to an Elizabethan deed: ‘Noverint Universi Per Presentes’, which Shakespeare elsewhere recites in English translation: ‘[b]e it known unto all men by these presents’.138 Timon of Athens (1607–08) was probably inspired or encouraged by a ‘Timon’ comedy that was performed at the Inns of Court in 1602,139 but it has largely been overlooked as a Shakespearean ‘law play’. It contains numerous telling reflections on the nature of law, many of which bear directly on equity’s concern with the strictness of law (3.6.90); with the law’s ‘rough power’ (4.3.448); with the pleading of ‘false titles’ (4.3.162) and with the law’s tendency to destroy those who step into it (3.6.12). The play reminds us that ‘pity is the virtue of the law’ (3.6.8). With such a legal and equitable backdrop it is not fanciful to suppose that Shakespeare intended the painter and the poet to play on the juridical senses of promise and performance in addition to the many more obvious meanings that those words will bear. Lawyers in the original audience, would have relished the intricate word play: the artists mismatch the legal senses of words – promising is associated with a deed and performance is associated with a will; whereas in legal terminology promise ought to be paired with performance, and will with deed. The intriguing reference to the ‘deed of saying’ evokes Austin’s idea of the ‘speech act’140 which in an earlier incarnation he called a ‘performative utterance’: When I say ‘I name this ship the Queen Elizabeth’ I do not describe the christening ceremony, I actually perform the christening; and when I say ‘I do’ (sc. take this woman to be my lawful wedded wife), I am not reporting on a marriage, I am indulging in it. Now these kinds of utterance are the ones that we call performative utterances. This is rather an ugly word, and a new word, but there seems to be no word already in existence to do the job. The nearest approach that I can think of is the word ‘operative’, as used by lawyers. Lawyers when talking about legal instruments will distinguish between the preamble, which recites the circumstances in which a transaction is effected, and on the other hand the operative part—the part of it which actually performs the legal act which it is the purpose of the instrument to perform.141

Austin’s performative utterance or ‘speech act’ (as he later termed it)142 is speech as act. Shakespeare has something else in mind. Luke Wilson argues that the ‘deed

138 As You Like It (1.2.87). Rosalind says that the men have ‘bills on their necks, “Be it known unto all men by these presents”’. 139 JC Bulman Jr, ‘Shakespeare’s Use of the “Timon” Comedy’ in K Muir (ed), Shakespeare Survey Volume 29: Shakespeare’s Last Plays (Cambridge, Cambridge University Press, 1976). It has even been argued that Shakespeare’s Timon was written for performance at the Inns of Court (see EAJ Honigmann, ‘Timon of Athens’ (1961) 12(1) Shakespeare Quarterly 3–20) although this has been doubted (see Jowett (ed), Timon of Athens (Oxford, Oxford University Press, 2004) 11). 140 JL Austin, ‘How to do Things with Words’ (The William James Lectures, Harvard University, 1955 (JO Urmson (ed)) (Oxford, Clarendon Press, 1962). 141 JL Austin, ‘Performative Utterances’ ch 10 in JO Urmson and GJ Warnock (eds), JL Austin: Philosophical Papers 3rd edn (Oxford, Clarendon Press, 1979) 233, 235–36. 142 Austin, ‘How to do things with Words’, above n 140.

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Chancery Script of saying’ lacks the simultaneity between speech and act which one finds in a true ‘speech act’ and instead corresponds to another type of performance in Austin’s scheme – namely performance in the theatrical mode, which aims (in Shakespeare’s phrase) to ‘suit the action to the word’.143 I would go further and suggest that in the poet’s ‘deed of saying’, speech has replaced the act – speech has been turned into a substitute for the deed; saying has become a substitute for doing. Returning to the law, we can observe that at common law a contract is merely a promise of performance and contractual damages merely compensate for the fracture that arises between promise and performance (between speech and act). The equitable remedy, in contrast, strives for actual performance and when a fracture arises between promise and performance (between speech and act) the equitable remedy of specific performance attempts to heal it.

Equitable Property It is crucial to appreciate that equitable property has no existence independent of legal property. It is therefore to be understood wholly in terms of its supplemental relationship to legal title. The crucial difference between legal title and equitable property is, in broad terms, that legal title binds the whole world whereas equitable title binds most people, but not all: equitable title will not bind a good faith purchaser of legal title who had no notice prior to purchase that the vendor’s legal title was subject to another person’s equitable interest in the property.144 This ‘notice’ exception is crucial in terms of justice and jurisdiction. In terms of justice, it would be quite unfair for an equitable interest to be enforceable against a good faith purchaser of legal title if they had no notice of it or could not have acquired notice of it by carrying out ordinary prudent searches.145 In terms of jurisdiction, the point is explained very clearly by a judge in a recent case: If equity had tried to make the third party purchaser liable, irrespective of any notice, it would not have been acting in personam. It would have been creating a title in the original purchaser good as against the whole world. Thus it would have been acting in rem. It would have been ousting the common law, not supplementing it.146 143 Hamlet, Prince of Denmark 3.2.12–13, considered in Austin (ibid). See Wilson, Theaters of Intention, above n 137 at 180. 144 Pilcher v Rawlins (1872) LR 7 Ch App 259, 268–69 (WM James LJ). It is often said that the bona fide purchaser for value of a legal estate without notice of an equitable interest is ‘equity’s darling’. The poetry is pleasant, but Jeffrey Hackney observes that in truth the bona fide purchaser is the darling of the common law: ‘Equity shows him no affection at all, he has simply shown himself to belong to that large class of common law owners with whom Equity has nothing to do’ (J Hackney, Understanding Equity and Trusts (London, Fontana, 1987) 25). 145 A purchaser who fails to carry out prudent searches is said to have ‘constructive notice’ of any adverse interests that such a search would have revealed (Kingsnorth Finance Co Ltd v Tizard [1986] 1 WLR 783 (Ch)). For discussion of ‘constructive’ as a deeming or fictive word see this chapter at 127. 146 R Griggs Group Ltd v Evans [2005] Ch 153, 164.

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Trust In the following sections I will consider the two most significant outcomes of equity’s supplemental activity in relation to legal proprietary title: ‘the trust’ and ‘the mortgage’. The purpose, as ever, is to consider the extent to which they demonstrate the potential for justice beyond routine rules, and to consider to what extent the juridical idea coincides with (and influences or is influenced by) ideas found in wider literary culture.

Trust Trust is a legal word which, like so many legal words, is misaligned with its everyday meaning. Legal trust is not the same thing as actual trust. If Edith leaves property to Jenny ‘trusting’ that she will not let Betty go short of what she needs, it is certain that Edith is reposing actual trust in Jenny, but the arrangement is not expressed with sufficient certainty (as regards the extent of Betty’s equitable interest) to affect Jenny’s conscience and make her a trustee of a juridical trust with all the legally-binding obligations that would entail.147 Conversely, where a legally-binding trust is created successfully (usually with professional legal advice) the very act of expressing the trust in juridical terms might indicate that actual informal trust cannot be relied on. The classic express trust ‘to my surviving spouse for life and to my children in remainder’, when it is not motivated by fiscal or other financial reasons, is normally motivated by the desire to protect the interests of the children and this might imply that the person setting up the trust (the ‘settlor’) cannot wholly trust the other parent. The surviving spouse may remarry, and the wisdom of fairy tales warns us that when the surviving parent remarries he or she cannot always be trusted to resist the schemes of the new spouse where they are adverse to the children of the deceased (Hansel and Gretel is a case in point; The Juniper Tree is another).148 Suppose that the surviving spouse dies and the orphaned child is left with a wicked step parent (this is the Cinderella syndrome). How is the child to be protected? Where the child is too young to be named absolute owner of its parents’ assets, what is required is to ensure that the child has property rights in the assets even though they are formally held in another person’s name. This is what a chancery trust achieves. The trust places formal legal ownership in the trustee and informal ‘beneficial’ or ‘equitable’ ownership in the child as beneficiary. But in what sense is this arrangement equitable? It is equitable in so far as it departs from the strict formality of legal title, but that moment of departure was a moment in history which has long passed. Nowadays express trusts are created routinely. Bernard 147 It was stated in Jones v Lock (1865) LR 1 Ch App 25 that a trust will not be spelled out of ‘loose conversations’ (at 29). 148 In The Juniper Tree we are told that ‘[T]he mother loved her daughter very much, but hated the little boy [from the first marriage], and bethought herself how she might get all her husband’s money for her own child’ (Grimms’ Fairy Tales (1823) (London, Penguin, 1996) 275).

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Chancery Script Rudden was largely correct when he observed that the traditional distinction between law and equity ‘provides only an historical and not a rational account of the trust’.149 And yet, despite the routine creation of the modern express trust, it still provides a model for equitable thought because the state of property ownership under a trust is not a settled state (even though it is called a settlement). The trust maintains an unsettled state between the ideas of property and obligation – the trust relates the property of the beneficiary to the obligation of the trustee – and it maintains an intermediate state of plural ownership between absolute ownership by one individual (the settlor) and absolute ownership by another individual (the beneficiary with whom the trust ends).150 The trust is not so much a state of ownership as a dramatic tension maintained between states of ownership. Some scholars think that the trust is a way of holding property which arises from a personal obligation. This is certainly accurate as an account of the historical evolution of the trust (as late as 1567, the use was said to relate to land merely in a collateral way, being ‘no more than a confidence for the use of land’ which did not create rights in the land itself).151 Others regard the trust as an obligation arising from the division of rights in property into the legal and the equitable – if the absolute owner of property expressly or impliedly confers a share of the benefit on another person (a beneficiary), a consequence is that the beneficiary inevitably reposes trust in the legal owner. In my view, the latter analysis more accurately reflects the nature and operation of trusts in modern law but for present purposes it is unnecessary to debate priority between the chicken and the egg – the salient point is that we have both, and each is in the other. Whichever has theoretical priority, the property aspect or the obligation aspect, the genius of the trust is that it has transformed something as selfish as property ownership into a relationship based on selfless responsibility. The relationship cannot easily be categorised as either property or obligation; it is truly both at the same time. The trust may be routine nowadays and in that sense no longer equitable, but there is a beauty in the fact that in its rigidity there are contrasting facets. Like a diamond, the trust has been formed into something rare and beguiling by the pressure of more or less accidental forces acting over a long span of time. It even has beauty enough to attract attention from civil law jurisdictions that wish to explore the conceptual space between property and obligations.152 149

B Rudden, ‘Things as Things and Things as Wealth’ (1994) 14 Oxford Journal of Legal Studies

81, 89. 150 If all the beneficiaries of a trust are adult and between them absolutely entitled to the fund, and if they agree, they can bring the trust to an end (Saunders v Vautier (1841) 10 LJ Ch 354). 151 Delamere v Barnard (1567) 1 Plowd 346, 352 cited in Jones, ‘Trusts in England after the Statute of Uses’ in Helmholz and Zimmermann (eds), Itinera Fiduciae, above n 133 at 173, 193. 152 Maitland reported, with too much apparent glee it must be said, that the great German jurist Gierke could not understand the trust, because it did not fit into the strict division between Sachenrecht and Obligationrecht that the German jurists ‘regard as the necessary scheme of jurisprudence’ (FW Maitland, ‘Uses and Trusts’ in Equity: A Course of Lectures (1909) rev 2nd edn (J Brunyate ed) (Cambridge, Cambridge University Press, 1936) 23). It has been said that it is impossible to

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Trust The trust is a doctrinal paradox and yet despite this (actually, because of this) it is almost limitless with regard to the practical functions to which it can be applied – from co-ownership of a home to the management of pensions and the settlement of wealth on future generations. The rich use trusts to plan their estates so as to avoid tax, the poor benefit from charitable trusts and a trustee in bankruptcy holds the estate of a bankrupt. The trust is used to hold property in private clubs, to protect consumers and to progress commerce. However, if the trust is a diamond, there is no doubt that it sometimes cuts. Maitland’s unqualified pride in the English trust must be tempered by this consideration.153 Quite apart from the use (or abuse) of the trust in the avoidance of taxation and its use in dangerously abstract154 and sometimes criminal155 commercial structures even everyday trusts require investment that will maximise wealth without regard to ethical considerations (unless all the beneficiaries agree that ethical considerations should be preferred). The imperative of wealth-maximisation even requires trustees to break a non-legal promise (a so-called ‘gentlemen’s agreement’) if to do so would be in the best financial interest of beneficiaries.156 Can there be a green spot in the midst of all this? To see that there may be, it will be informative to set out a brief overview of the historical development of the trust.

incorporate the Anglo-Saxon trust into the French legal system (H Motutsky, ‘De l’impossibilité juridique de constituer un ‘trust’ Anglo-Saxon sous l’empire de la loi française’ [1948] Revue Critique de Droit International Privé 451–68) because ‘Dans le trust, le droit depropriété est éclaté suivant une division inconnue des systèmes civilistes’ (Jean-Paul Béraudo, Les Trusts Anglo-Saxons et Le Droit Français (LGDA, Paris, 1992) 8, para 18). Hence, ‘La Fiducie’ recently admitted into French law (Loi 2007–211 du 19 février 2007 instituant la fiducie) is not a trust in the English proprietary mode, but a special form of contract – albeit one under which the trustee, breaking with French law’s traditional théorie de l’unité du patrimoine (une personne, un patrimoine) holds two patrimonies: his own and that which he holds on behalf of the trust beneficiaries. 153 ‘If we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think that we should have any better answer to give than this, namely the development from century to century of the trust idea’. (FW Maitland, The Unincorporate Body in HAL Fisher (ed), The Collected Papers of Frederic William Maitland, vol III (Cambridge, Cambridge University Press, 1911) 272.) 154 Trading on ‘pools’ of mortgage equity held under trusts contributed to the 2008 collapse of the very commercial system that the trust had helped to create. Under one type of so-called ‘mortgagebacked security’ the lending institution’s pool of mortgages is held in trust for the benefit of a ‘special purpose vehicle’ (usually a corporation), in which the investor acquires shares. The investor in a mortgage-backed security is shielded from the insolvency of the lending institution, but assumes a share of the risk associated with the pool of mortgages (see generally, FJ Fabozzi and F Modigliani, Mortgage and Mortgage-Backed Securities Markets (Boston, Harvard Business School Press, 1992)). 155 D Farah, ‘Russian Crime Finds Haven in the Caribbean’ Washington Post (7 October 1996) A15. For an argument that a complex knot of trusts and companies across several jurisdictions can be employed to sap the will of any party interested in unravelling it, see D McNair, ‘Risk Assessment in Multi-Jurisdictional Asset Protection Structures’ (1996) 2(1) Trusts and Trustees and International Asset Management 15. 156 Buttle v Saunders [1950] 2 All ER 193.

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Chancery Script

The Historical Development of the Trust The modern trust is a direct descendant of the medieval ‘use’.157 In England as early as the seventh and eighth centuries the common law had a form of ‘use’ in relation to chattels and money, under which money had and received by A ‘for the use of B’, subjected A to common law obligations in relation to the use of the money. It was in relation to land that ‘[t]he use simply could not be fitted into the common law scheme of things, for the doctrine of estates and the doctrine of seisin left no place for the separation of beneficial enjoyment from legal title’.158 This was a special problem for the Church, because so-called ‘Statutes of Mortmain’ (notably the Statute De Religiosis 1279) prohibited gifts of land to be made to the Church in perpetuity without authority of the Crown.159 Due to their vow of poverty, the Franciscans had never claimed to be entitled to land, but only to occupy land and enjoy its benefits. An example is provided by the first group of Franciscans to come to England. Having arrived in 1224, in 1225 they hired a house and grounds in Oxford from Richard the Miller, and within a year he ‘conferred the land and house on the community of the town for the use of the Friars Minors’160 (emphasis added). A year after the enactment of the Statute De Religiosis 1279, a Franciscan friar wrote to the Lord Chancellor seeking formal assurance that the Franciscan ‘use’ arrangement fell outside the prohibition on mortmain.161 Whatever the early origin of the trust idea, its survival was assured because the ecclesiastics, keen to circumvent Statutes of Mortmain, encouraged gifts of land to private persons to be held by them to the use of the Church. Courts of Chancery, being in essence ecclesiastic courts, were naturally highly supportive of this initiative and in due course devised a method to force the formal owner of the land – the so-called ‘feofee’ (the recipient of the fee subject to the use) – to admit to, and abide by, his conscientious trust. Chancery, which controlled the forms of writs, had invented a special writ, the writ of sub poena, which it used to compel the feofee to attend court and confess his trust under threat of punishment. Hence the use did not confer a right on the beneficiary of the use, but merely imposed an obligation on the feofee’s conscience.162 As St 157 N Jones, ‘Uses, Trusts and A Path To Privity’ (1997) 56(1) Cambridge Law Journal 175; and by the same author, ‘Trusts in England after the Statute of Uses’ in Helmholz and Zimmermann (eds), Itinera Fiduciae, above n 133 at 173, 182. See, in the same volume, J Biancalana, ‘Medieval Uses’. 158 AWB Simpson, An Introduction to the History of the Land Law 2nd edn (Oxford, Clarendon Press, 1986) especially ch 8 on ‘Uses and the Statute’ at 175. 159 The word ‘mortmain’ indicates that such statutes aimed to prevent lands from being placed under a ‘dead hand’ (ie rendered inalienable). 160 AG Little, Grey Friars in Oxford (Oxford Historical Society) 13, 295. See also, JH Baker, An Introduction to English Legal History (London, Butterworths, 1990) 284, fn 2 and Maitland, Equity, above n 152 at 25. 161 See AG Little, ‘The Franciscans and the Statute of Mortmain’ (October 1934) 49(196) The English Historical Review 673–76. 162 Chudleigh’s Case 1 Coke Rep 121 b. Procedural examination of conscience in chancery probably has its source in ecclesiastical writs such as the denunciatio evangelica (by which an informant could officially denounce individuals to the Church authorities). See JL Barton, ‘Equity in

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Trust German wrote: ‘If such default happen in any person, whereby he is without remedy at the common law, yet he may be helpen by a subpoena; and so he may in many other cases where conscience serveth for him’.163 The term ‘use’ derives from the language by which money was given to A ad opus (to work for) B;164 it does not derive, as is sometimes supposed, from the Latin usus or the Roman law idea of usufruct. Bacon and Blackstone were of the view that the use originated in the Roman fidei commissum.165 This device had been invented to pass benefits to an heir via a faithful friend in circumstances in which the heir could not take directly because of some legal disqualification166 (for instance, the Voconian Law of 169 BC disqualified females from direct inheritance in some circumstances).167 Maitland doubted the connection between fidei commissa and the English trust168 and Holdsworth considered all supposed Roman law equivalents to the trust to be ‘analogues of a superficial kind’.169 Such views are somewhat jealous of the trust’s ‘Englishness’. It is true that the Anglo-Saxons had their own methods for devolving land directly on nonheirs,170 but even if the Anglo-Saxon device was not derived from the Roman fidei commissum it would surely have made the Anglo-Saxons more receptive to the Roman idea when they eventually encountered it via the clerics. It seems highly unlikely that Roman legal or Roman ecclesiastical notions of trust had no influence on the English chancery idea. It is at least clear that a concept of trust ‘defined broadly as a continuing device by which one person holds property and administers it for the benefit of another’ was enforced in English ecclesiastical courts long before the chancery concept of a proprietary trust came into being.171 What would be wholly untenable, however, is any suggestion that the English chancery trust was derived wholly from Latinate ideas. The survival of the Anglo-Saxon word ‘trust’ is evidence enough that a connection has been maintained with an Anglo-Saxon original despite the subsequent overlaying of the Latinate language of ‘use’, ‘conscience’ and ‘fiduciary duty’. Sanders notes the existence contemporary with uses of certain temporary ‘trusts’ for specific purposes, such as for the payment of debt. These had presumably survived in

the Medieval Common Law’ in RA Newman (ed), Equity in the World’s Legal System (Brussels, Emile Bruylant, 1973) 139–55, 144–49; and H Coing, ‘English Equity and the Denunciatio Evangelica of the Canon Law’ (1955) 71 Law Quarterly Review 223, 230. 163 Dialogue, above n 33, ch 12. 164 Maitland, ‘Uses and Trusts’ in Brunyate (ed), Equity, above n 152 at 24. 165 Blackstone, Commentaries on the Laws of England, above n 70, book II (J Chitty (ed) London, 1826) 327–29, citing Bacon on Uses (c 1602). 166 Justinian, Institutes book II title 23. 167 E Gibbon, The History of the Decline and Fall of the Roman Empire (1776–1778) vol V ch 44 (Felipe Fernandez-Armesto ed) (London, Folio, 1987) 287. 168 Maitland, ‘Uses and Trusts’ in Brunyate (ed), Equity, above n 152 at 32. 169 WS Holdsworth, An Historical Introduction to the Land Law (Oxford, Clarendon Press, 1927) 141. 170 Spence, The Equitable Jurisdiction of The Court of Chancery, above n 53, vol I pt I, 20. 171 R Helmholz, ‘Trusts in the English Ecclesiastical Courts 1300–1640’ in Helmholz and Zimmermann (eds), Itinera Fiduciae, above n 133 at 153, 171.

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Chancery Script common customary practice since Anglo-Saxon times.172 The word ‘trust’ derives from an Anglo-Saxon set of words concerned with truth. There is treowfaest (‘true fast’: true, faithful); treownes (‘trueness’); truwa (trust, pledge, promise, covenant); treow (truth, trust, pledge) and treow[d] or (truth or ‘troth’). The last word survived until relatively recently as part of the Anglican marriage ceremony in the phrase ‘to thee I plight my troth’ – hence ‘betrothal’. That phrase is a ‘speech act’, to use Austin’s term,173 by which the groom pledged his fidelity to his bride. It is likely that the trust idea originated in a similarly simple Anglo-Saxon arrangement by which one person entrusted an asset to a friend or informally and publicly pledged that some possession of his would henceforth be held for the benefit of another person. Trust and the phrases ‘in trust’ and ‘on trust’ are everyday phrases with everyday meanings; they suggest a very basic Anglo-Saxon method of holding property which predates the sophisticated chancery trust of private property involving separate legal and equitable title. Even today the declaration of trust is an impressively primitive and powerful act – if I make an oral declaration of trust of any of my moveable possessions, the subject assets are from that moment onwards no longer mine to enjoy. The creation of the modern trust in the English chancery and the creation of the Church of England can both be traced, ultimately, to the same origin: King Henry VIII. Two statutes enacted during his reign – the Statue of Uses (1536)174 and the Statute of Wills (1540)175 – combined to prepare the ground for the modern trust. The use upon the use was in its origin, ‘an invention to evade or lessen the force of some pre-existing law’.176 As supreme overlord in the medieval feudal system of land ownership, the king was entitled to levy valuable feudal ‘fines’ or ‘incidents’ whenever land was inherited or an owner died without an heir. The ‘use’ was an early ‘tax-avoidance scheme’, which provided a way of circumventing feudal incidents by allowing the owner of land to place his legal title in a number of persons who could be replaced periodically, so ensuring that the land always had a living legal owner.177 In the meantime, the beneficiary of the arrangement was able to continue in occupation of the land and to reap the benefits of it. The use was therefore subject to the complaint that, because of it, ‘no man can know his title to any land with certainty’.178 The Statute of Uses transferred legal title to the beneficiary of the use (the so-called cestui que use), thereby bringing the use to an end or ‘executing’ it. The only uses that were executed were those concerning land where there was a single named beneficiary,

172 FW Sanders, An Essay on Uses and Trusts (in two volumes) vol I (London, William Walker, 1813) 15–16. 173 See above n 140. 174 27 Hen 8 c.10. 175 32 Hen 8 c.1. 176 Sanders An Essay on Uses and Trusts, above n 172 at 7, fn (c). 177 Baker, An Introduction to English Legal History, above n 164 at 288–89. 178 Thomas Audley, Reading on Uses (1526) (a reading on 4 Hen. 7, c.17) cited in JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (London, Butterworths, 1986) 103.

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Trust usually the original absolute owner, and which therefore represented a sham device for avoiding feudal incidents. Eventually, of course, inventive legal draftsmen found creative ways of avoiding the statute entirely. One such was a ‘use upon a use’ in the generic form ‘to A to the use of B to the use of C’. An early example appears in Bertie v Herenden (1560).179 The Statute of Uses only executed the first use by vesting legal title in B. The result was that B remained conscience-bound under the secondary use (the ‘use upon the first use’) to hold title for the intended beneficiary, C. The Statute of Wills might have nipped this conveyancing trick in the bud by ensuring that feudal liabilities fell upon the actual beneficiary, but there was ‘one gap in the Statue of Wills. The statute applied where any person ‘having’ an estate of inheritance disposed of it for the advancement of his wife, preferment of his children or payment of his debts’.180 This meant that if the beneficial holder of a fee settled it on another man’s wife and children, or if a man purchased a fee directly in the name of his wife (so that he could not be described as ‘having’ it at any stage), it would escape the statute. It is appropriate that the trust should escape the fiscal guns aimed at ‘having’ by moving the wealth instead of holding on to it.181 In future chapters we will see that equity’s moving quality – the fact that it is ‘stirring’ – is its essence. In 1615, Lord Coke recognised that the ‘use upon a use’ had been enforced because judges had ‘for advancement and expedition of justice, extended the Statute (against the Letter)’.182 It is not surprising, given his opposition to chancery at that time,183 that he does not credit ‘equity’ with the virtue of acting beyond the letter of the statute, but equity it was – the equity which requires an obligation of personal conscience to be discharged in the face of a routine reading of the law. By 1623, ‘trusts in the form of a use upon a use were common’.184 By the end of the seventeenth century it was not even necessary for A to be

179 B & M 121. See JH Baker, ‘The Use upon a Use in Equity’ 1558–1625 (1977) 93 Law Quarterly Review 33ff. 180 JL Barton ‘The Statute of Uses and the Trust of Freeholds’ (1966) 82 Law Quarterly Review 215. The point is developed in N Jones, ‘Estate Planning in Early-Modern England: “Having” in the Statute of Wills 1540’ in J Tiley (ed), Studies in the History of Tax Law (Oxford, Hart Publishing, 2004) 227, 230. 181 See further, N Jones, ‘The Influence of Revenue Considerations upon the Remedial Practice of the Court of Chancery in Trust Cases 1536–1660’ in C Brooks and M Lobban (eds), Communities and Courts in Britain 1150–1900 (London, Hambledon Press, 1997) 99. 182 First Part of the Institutes section 464 (S Sheppard (ed), ‘The selected writings and speeches of Sir Edward Coke’ Vol II (Indianapolis, Liberty Fund, 2003) 735). There were limits to how far the judges were prepared to venture into the equity of the statute. When all the judges of England sat in Chudleigh’s Case (1595) 1 Coke Rep 121b they declined to adopt Mr Justice Walmesley’s proposal that contingent uses should be exempted from the statute. On Walmesley, see below n 189. 183 See ch 2 at 49. 184 Jones, ‘Trusts in England after the Statute of Uses’ in Helmholz and Zimmermann (eds), Itinera Fiduciae, above n 133 at 173, 182, citing Henry Sherfield’s, Reading On The Statute of Wills (32 Hen 8 c.1) (Lincoln’s Inn 1623, BL MS Harg. 402, fo. 34v). See also, Baker and Milsom, Sources of English Legal History, above n 178 at 124 and WS Holdsworth, History of English Law 2nd edn vol VI (London, Methuen, 1937) 641.

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Chancery Script mentioned at all; chancery was content to enforce a form of conveyance ‘to B, unto and to the use of B, in trust for C’.185 The interest of C, the cestui que trust, could now only be defeated by a bona fide purchaser of the legal estate for value without notice of C’s interest. By this doctrine equitable ownership was established and the modern trust was born.186

The Metaphysical Appeal of the Trust The historical account of the invention of the trust indicates that it was formed by the arts of ingenious conveyancers applied to certain narrow problems of statutory construction. We know how the so-called ‘bastard use’ was born,187 but why did it thrive? Its success can be explained in economic and political terms, of course, but a part of its appeal is metaphysical. The metaphysic of the trust is distinction within unity – one asset with two titles (legal and equitable), one property in two courts – it is a metaphysic that would have been readily received by an early modern European culture already imbued with the three-in-one of the Christian Godhead and the two-as-one of the Judeao-Christian marriage ceremony. It would have resonated especially in an early modern England inhabited by equivocators who were at one and the same time Anglican and Roman Catholic.188 The chimerical idea of the English trust could have been planted in any mind at any time, but minds nurtured in the culture of early modern England were especially well prepared to receive and cultivate it. It must be the case that numerous lawyers in early modern England were in outward form adherents to the new Church of England while secretly remaining in substance Roman Catholics.189 Such persons would have had a natural affinity for the trust, with its distinction between outward form and inner substance. The work of Shakespeare was an epitome of that time, so it is no surprise that the metaphysic of unitary distinction receives profound expression in it, and nowhere is it more beautifully expressed than in a poem he wrote for a 1601 collection on the theme of the phoenix and the turtle-dove (the phoenix representing the Queen and the turtle-dove a doting courtier).190 It has been

185 Simpson, An Introduction to the History of Land Law, above n 158 at 187–88; Baker and Milsom, ibid at 125–26. 186 WS Holdsworth, History of English Law 3rd edn vol IV (London, Methuen, Sweet & Maxwell, 1945) 433. See Sinclair v Brougham [1914] AC 398 (HL) 441–42 (Lord Parker of Waddington). 187 Henry Sherfield observed that a ‘bastardly use’ had started up ‘by the true name which the use had at first––which is “trust and confidence”’ Reading on Wills (1623) at 32. 188 I Ward, ‘Terrorists and Equivocators’ in P Raffield and G Watt (eds), Shakespeare and the Law (Oxford, Hart Publishing, 2008) 185–202. 189 Sir Thomas Walmesley might have been one such (see J Snape, ‘Sir Thomas Walmesley – an Elizabethan Judge’ (1994) 3 Nottingham Law Journal 107, 124–27). 190 Love’s Martyr: or Rosalins Complaint. Allegorically shadowing the truth of Loue, in the constant Fate of the Phoenix and Turtle etc (1601).

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Trust described as ‘the first great published metaphysical poem’.191 Since 1807, the poem has been known as ‘The Phoenix And Turtle’ or by its first line ‘Let the Bird of Loudest Lay’ but it is fitting that it was written without a title; that it does not conform. The poem can be read as an ode to the metaphysics of marriage and it can serve as well as an ode to the metaphysical marriage of legal and equitable property within the trust. The following are stanzas 7 to 10: So they loved, as love in twain Had the essence but in one; Two distincts, division none: Number there in love was slain. Hearts remote, yet not asunder; Distance, and no space was seen ‘Twixt this turtle and his queen: But in them it were a wonder. So between them love did shine, That the turtle saw his right Flaming in the phoenix’ sight; Either was the other’s mine. Property was thus appalled, That the self was not the same; Single nature’s double name Neither two nor one was called.

The metaphysical relation which the trust establishes beyond legal title can serve as a model for justice beyond the law. It has already served in a limited way by providing the template for the ‘constructive trust’, as we will see next; and it can continue to serve in this way extra-judicially wherever individual entitlement ought to be disturbed by responsibility to others. In short, the trust counters the notion that property must be an undivided unity and it challenges the law’s dominant ideological requirement that human relations should conform to the stereotype of independently entitled actors engaging through contracts conducted at arm’s length.192

191 PG Cheney, The Cambridge Companion to Shakespeare’s Poetry (Cambridge, Cambridge University Press, 2007) 117. 192 The English trust has certain features of a contract, but a trust is more than a contract. Non-express trusts (‘constructive’, ‘resulting’ and other implied trusts) arise without any consent and even express trusts do not depend on consent (although it is usually present in some form or another) as is shown by the fact that a trust can be established by the will of the dead and against the will of the living and, once established, will never fail for want of a trustee. (See G Watt, Trusts and Equity 3rd edn (Oxford, Oxford University Press, 2008) 19–20). For the contrary view, that ‘[t]rusts are contracts’, see JH Langbein, ‘The Contractarian Basis of the Law of Trust’ (1995) 105 Yale Law Journal 625, 627. It is arguable that in their historical origins trusts were contracts, but now they are property institutions. If I create a trust by my will, the court is obliged to administer the trust if nobody else can be found to do so. The only ‘contract’ here is my social contract with the state mediated through rights in property.

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Chancery Script

Constructive Trust The constructive trust is, according to Justice Benjamin Cardozo, ‘the formula through which the conscience of equity finds expression’,193 and a ‘remedial device through which preference of self is made subordinate to loyalty to others’.194 A similar attitude is taken in Canada,195 but in England the constructive trust is considered not to be an equitable remedy, but a property institution akin to an express trust: Even if it be right to say that the courts can impose a constructive trust as a remedy in certain cases––which to my mind is a novel concept in English law––in order to provide a remedy the court must first find a right which has been infringed . . . it cannot be that the interest in property arises for the first time when the court declares it to exist.196

In North America, the constructive trust can be employed to create new property relations if that will achieve a remedial outcome that the judge perceives to be just, whereas in England a constructive trust will only be imposed where the existing owner of property is deemed, by their conduct, to have disposed of some part of their existing ownership in favour of the claimant. In our discussion of the Oughtred case, we encountered a constructive trust of an equitable interest in company shares, but the more commonplace situation is where the legal owner of land accepts capital contributions to the purchase or improvement of the land from a person who reasonably expects to acquire a beneficial share in the land, or where the legal owner declares a trust in favour of a person with whom they cohabit but without complying with the formal requirement of writing which is required to make the trust binding in court. If the claimant has not made substantial direct financial contributions and the defendant has not made an express declaration in favour of the claimant (or, a declaration has been expressed but not relied on to the claimant’s detriment), English law takes the view that the defendant can insist that he or she is still the one hundred per cent beneficial owner of the land. This can work hardship. In 1983, the Court of Appeal heard the case of Burns v Burns,197 which involved a dispute between an unmarried couple (Mrs Burns had taken Mr Burns’ name for the sake of appearance). ‘Mrs’ Burns had lived with Mr Burns for nearly two decades, they had two children together, and she gave up work to look after them. Later on she returned to work and her earnings were spent on household expenses and everyday outgoings. The family home they were living in when their relationship broke down had been acquired in Mr Burns’ sole name during the course of their relationship and yet the Court of Appeal held that she had no beneficial interest in it because there

193 194 195 196 197

Beatty v Guggenheim Exploration Co 225 NY (1919) 380, 386. Meinhard v Salmon (1928) 164 NE 545, 548. Pettkus v Becker (1980) 117 DLR (3d) 257, 274. Re Sharpe (a bankrupt) [1980] 1 WLR 219, 225H (Browne-Wilkinson J). Burns v Burns [1984] Ch 317.

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Trust had been no common intention to that effect. It is inconceivable that the same outcome would have occurred when Denning was presiding over that Court, but unfortunately Mrs Burns’ appeal came to court the year after Denning had retired. Lord Denning had preferred a more flexible variety of constructive trust aimed at achieving a just allocation of assets between the parties without being constrained to find a common intention based on an express understanding or direct financial contribution. The very word ‘constructive’ concedes that the dilemma between formal certainty and indulgent exceptions cannot, as a matter of fact, be resolved by bright-line rules. There is a story telling process inherent in the word. Sir Robert Megarry recognised this when he said that ‘“Constructive”’ seems to mean ‘“It isn’t, but has to be treated as if it were”’. In America this has been considered a virtue: the constructive trust has been described approvingly as ‘a fiction imposed as an equitable device for achieving justice’.198 Megarry took a different view. His Lordship considered ‘constructive’ to be ‘an unhappy word in the law’ and stated that ‘the less of this there is in the law, the better’.199 If Megarry was suggesting that the story of the law should be utterly cleansed of this ‘sad’ element, we can be sure that the resulting law will, by its pretensions to scientific perfection, produce more travesties of the sort suffered by Mrs Burns. The better approach is to regard the constructive aspect of property law as an opportunity to tell a more complete, more complex and more humane story of law. There is no easy answer to the problem of informal property claims in the context of cohabitation – even the Law Commission of England and Wales was defeated by the challenge and took the unprecedented (but appropriately humble) step of issuing a discussion paper when it was expected to issue proposals for reform.200 In the leading case, Lloyds Bank v Rosset,201 Lord Bridge of Harwich restated the strict law on the informal creation of a constructive trust of land in similar formulaic terms to those set out in Burns v Burns, but Lord Bridge subtly offset the extreme strictness of the standard formulation of the substantive law by introducing an element of equitable indulgence to the evidential or adjectival dimension of the formula. I have placed the indulgent element in italics in the following extract from his speech: The finding of an agreement or arrangement to share…can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made it

198

Healy v Commissioner of Internal Revenue 345 US 278 (1953) 282 (Supreme Court) (Vinson

CJ). 199 Fiduciary Duties (Special Lectures of the Law Society of Upper Canada 1990) (Ontario, De Boo, 1991) 1, 5. 200 Law Commission, ‘Sharing Homes: A Discussion Paper’ (Law Com No 278, 2002). The Law Commission subsequently published a report in which it recommended a voluntary scheme for the regulation of financial disputes between certain classes of cohabitant: Law Commission, ‘Financial Consequences of Relationship Breakdown’ (Law Com No 307, 2007). 201 Lloyds Bank v Rosset [1991] 1 AC 107.

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Chancery Script will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppel. …where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to each such an arrangement if they had applied their minds to the question…direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.202

The italicised words confirm that the ‘constructive’ element of constructive trust, even in the institutional English version of that trust, is an element which encourages the parties to tell a story. The claimant is invited to recall a narrative so long-forgotten that it is probably imagined.

Public Example and Private Equity We have just observed the subtle technique by which Lord Bridge maintained the public story of property law (the story which says that property interests can only be transferred by express agreement or cash contribution) while offering claimants in particular cases an opportunity to rely on a story of his or her own making. A similar technique is employed in relation to express trusts, where the public story is one that requires trustees to abide by strict standards of fiduciary propriety, but where the judges sometimes write a story of more particular justice between the lines. James LJ once held that the trustees’ fiduciary duties, which include the duty not to make an unauthorised profit and the duty not to put oneself in a position of potential conflict with the trust, must be strictly enforced for ‘the safety of mankind’.203 That is the standard legal excuse for the strict enforcement of fiduciary duties, and it requires a powerful imagination to believe it.204 (The strictness with which trustees’ fiduciary duties are enforced can only be justified if one imagines that wider society will be harmed if any trustee in a particular case is shown a degree of equitable indulgence.) In practice, the story that fiduciary duties must be enforced strictly ‘pour encourager les autres’205 is shouted loudly so that all trustees (including people in non-juridical positions of trust) everywhere will hear it, but beneath the shout a quieter form of justice – a 202

Ibid at 132. Parker v McKenna (1874) 10 Ch App 96, 125 204 Which is ironic, given that his Lordship purported to deny equity’s fictional operation in modern law (see below at n 226). 205 Commenting on Boardman v Phipps, Gareth Jones has observed that: ‘there are cases where the innocent fiduciary must suffer, like Admiral Byng. Policy may demand a public sacrifice of the fiduciary’s profit’ (G Jones, ‘Unjust Enrichment and the Fiduciary’s Duty of Loyalty’ (1968) 84 Law Quarterly Review 477, 487). The execution of Byng was satirised by Voltaire in Candide. Candide’s 203

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Trust more particular and equitable justice – is whispered between the parties. This is what occurred in the House of Lords in Boardman v Phipps.206 Boardman was a solicitor acting on behalf of a trust who, in that capacity and acting as proxy to the trustees, had attended the annual general meeting of a company in which the trust had a substantial shareholding. Unhappy with the state of the company, he and one of the beneficiaries (his co-defendant) decided to launch a takeover bid for those shares in the company that were not already trust owned. Boardman wrote to the beneficiaries outlining his plans to take a personal interest in the company, thereby giving them an opportunity to raise any objections they might have to his so doing. No objections having been made, the defendants proceeded with the takeover. In the event, the takeover was very successful and the value of the shares in the company greatly increased in value, to the great profit of the trust and the defendants. Despite this, one of the trust beneficiaries (Phipps) brought an action against Boardman for an account of the unauthorised profits he had made in his fiduciary capacity. The trial judge, Wilberforce J, found as a fact that Phipps had not been fully informed by Boardman as to the precise nature of his plans and ordered him to make the account. When the matter came on appeal to the House of Lords, Lord Hodson acknowledged that Boardman had acted in ‘an open and honourable manner’207 and Lord Cohen went so far as to state that he had ‘acted with complete honesty throughout’,208 but a bare majority of their Lordships (these two included) still upheld the strict rules of fiduciary propriety and required Boardman to account. At first sight this proves Allen’s observation that there is ‘an “over-righteousness” of equity as unfortunate in its consequences as the “over-righteousness” of law’.209 However, their Lordships also upheld the decision of Wilberforce J that Boardman should be paid a quantum meruit out of the trust fund ‘on a liberal scale’, by way of recognition for his hard work in service of the trust. Just as Lord Bridge found a way of softening the rules on creating a constructive trust in the cohabitation context by whispering permission to invent a story, so their Lordships in Boardman softened the strict rule of fiduciary propriety by whispering justice beneath the shout of public policy. The story that fiduciary duties must be strictly enforced is a story made for public consumption, but it is not the whole story.

companion, the world-weary Martin, observes ruefully that in England it is deemed good to kill an admiral from time to time ‘pour encourager les autres’ (François-Marie Arouet Voltaire, Candide ou l’optimisme (1759) Ch 23). 206 Boardman v Phipps [1967] 2 AC 46. 207 Ibid at 105G. 208 Ibid at 104E. 209 CK Allen, Law in the Making 4th edn (Oxford, Oxford University Press, 1946) 340. (The first edition of this book appeared in 1927.) I discuss extremism in the guise of equity elsewhere (G Watt, ‘The Sword of Equity’ in D Carpi (ed), Practising Equity, Addressing Law: Equity in Law and Literature (Heidelberg, Universitätsverlag Winter, 2008) 99–117).

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Chancery Script

Mortgage The English mortgage is a work of fiction, and it is a fiction of the dishonest kind. This was most apparent in the days when the mortgage operated by conveying the borrower’s (mortgagor’s) fee simple to the creditor (mortgagee) until repayment of the debt, at which point the fee simple was redeemed by reconveyance back to the borrower. The ‘conveyance’ expressed in the mortgage deed was ‘one long suppressio veri and suggestio falsi’.210 Maitland attributed the falsehood to the ‘action of equity’, but the legal deed of mortgage was inherently dishonest, for it pretended to convey legal ownership when the parties merely intended to create security for the loan. Equity tried to give effect to the true substance of the arrangement by introducing a supplemental fiction according to which the borrower was deemed to retain a distinct equitable interest in the land, called the ‘equity of redemption’ for so long as the fee simple was held in the name of the creditor. Equity was forced to adopt this false story to counter the even greater lie told by the legal deed.211 If this sounds convoluted, it is some comfort to know that even Lord Macnaghten, whom Holdsworth described as ‘the greatest of the equity lawyers who became Lords of Appeal’,212 admitted that ‘nobody by the light of nature ever understood an English mortgage of real estate’.213 The traditional mortgage is not elucidated by natural lights – whether conceived in terms of natural law or natural science or enlightenment philosophy – because it is an idea so utterly abstracted from nature. The modern mortgage in English law, which calls itself a ‘charge by way of legal mortgage’, also operates in the world of make-believe. In legal form it is a quite fabulous creature: nothing less than a charge that professes to be a mortgage but which confers a right to possession on the mortgagee as if he had a lease and (in favour of a first mortgagee) confers a right to possess title documents as if the security were in fact a fee simple. The relevant statutory sections have to be seen to be believed (the most obviously fictive elements have been italicised): A mortgage of an estate in fee simple shall . . . be capable of being effected at law . . . by a charge by deed expressed to be by way of legal mortgage: Provided that a first mortgagee shall have the same right to the possession of documents as if his security included the fee simple.214 Where a legal mortgage of land is created by a charge by deed expressed to be by way of legal mortgage, the mortgagee shall have the same protection, powers and remedies (including the right to take proceedings to obtain possession from the occupiers and

210

Maitland, ‘Uses and Trusts’ in Brunyate (ed), Equity, above n 152 at 182. G Watt, ‘The Lie of the Land: Mortgage Law as Legal Fiction’ in E Cooke (ed), Modern Studies in Property Law vol 4, above n 121 at 73–96. 212 WS Holdsworth, ‘Equity’ in Goodhart and Hanbury (eds), Essays in Law and History, above n 8 at 175. 213 Samuel v Jarrah Timber and Wood Paving [1904] AC 323 at 326 (Lord Macnaghten). 214 Law of Property Act 1925 s 85(1) (emphasis added). 211

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Conclusion the persons in receipt of rents and profits, or any of them) as if. . . where the mortgage is a mortgage of an estate in fee simple, a mortgage term for three thousand years without impeachment of waste had been thereby created in favour of the mortgagee.215

It seems that legislators are the unacknowledged poets of the world.216 Strip away the myth surrounding the English mortgage and one discovers that it is essentially hypothecary in nature – the debtor keeps the thing, but the creditor has a charge over the thing. This is the simple reality. I should say that this is the simple legal reality. If one looks even closer one sees that even the legal idea of a charge is a fiction. A charge cannot be defined, except to say in a circular way that it is something to be dis-charged. The nature of the thing is defined by the absence of the thing, because, as with so many elements of property law, there is no actual thing but only a fictional way of conceiving relations with a thing. The very nature of the ‘charge’ is in fact a simple picture or metaphor of ‘carriage’.217 As a beast is burdened by the ‘cargo’ it ‘carries’ on its back, so land is burdened by a charge.

Conclusion At the start of this chapter we observed that certain jurists consider chancery’s language of equity to be old-fashioned and argue that it ought to be erased. I have argued, to the contrary, that there is wisdom in its old age and that we should seek to learn from it. We do not mourn the passing of the old Court of Chancery with all the evils it perpetuated, especially in its latter days, but we should not make the mistake of sealing its treasure in the tomb. The treasure of chancery is a living language; a vital repository of checks and balances that maintain the law’s just operation in the zone between too much rigour and too much flexibility. The English language is a thriving legacy of the department of chancery scribes, and a legal language of equity is a thriving legacy of the Court of Chancery. Chancery language still has the capacity to inform the art of bending rules without breaking them and the capacity to reform the law without deforming it. Perhaps chancery’s language of equity is somewhat inconvenient and irritating to those who set out the law’s future according to a scientific scheme, but the notion that the law ever could be, or even ought to be, a perfectly integrated system is a notion that ought to be inconvenienced and irritated. The law’s language, even judicial language, must maintain a discomfiting dialogue with life beyond the law if it is ever, on occasion, to transcend its own categories and reshape them in response to social change and the unforeseen case; in short, if it is ever to depart from its 215

Law of Property Act 1925 s 87(1) and (1)(a) (emphasis added). Percy Bysshe Shelley once wrote that ‘[p]oets are the unacknowledged legislators of the world’ (Defence of Poetry, 1819). 217 Old French charger ‘to load or burden’ from Latin carricare ‘to load a wagon or cart’ from Latin carrus ‘wagon’. 216

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Chancery Script own routines. If we did not have the language of ‘equitable maxims’ and the doctrine of ‘unconscionability’ and many other elements of chancery’s language of ‘equity’, we would have to manufacture a language to perform the tasks they perform. Thankfully, no such manufacture is called for. Continued natural development of chancery language will suffice. Equity furnishes the law with arts and crafts, not factory pieces. ‘Have nothing in your houses that you do not know to be useful, or believe to be beautiful’ was William Morris’ ‘golden rule’;218 and it applies to the house of law. When we appreciate that equity’s true function is to operate as an internal irritant to the law by maintaining a connection with the languages of life beyond the law then we see that chancery’s equitable language is still useful. When our appreciation is deep enough we see that it is beautiful too; and when we look even deeper we see that chancery’s language is not beautiful because it is useful, but useful because it is beautiful. Even ‘the trust’ is redeemed from its faults by its immense practical utility and its metaphysical and aesthetic appeal. The same quality which gives rise to its utility gives rise to its beauty; one cannot have one without the other. The equitable language of chancery could be made more beautiful and more useful, of course; but the script will only be improved by continued performance in particular cases. Judgment is an art which must be cultivated as an art if is to be perfected. Even the most radical reformers cannot deny that there is a need for at least some element of human discretion in the judicial function; and I would challenge them to deny that discretion is more of an art than a science. As Coke said, we are concerned with ‘the artificial reason and judgment of law, which law is an art’.219 Coke also acknowledged that ‘equity exists in legal fiction’ (in fictione juris semper aequitas existit).220 Blackstone expressed the same point with different Latin: in fictione juris consistit aequitas.221 We know that Jeremy Bentham was suspicious of fictions: What you have been doing by the fiction – could you, or could you not, have done it without the fiction? If not, your fiction is a wicked lie; if yes, a foolish one. Such is the dilemma. Lawyer! Escape from it if you can.222

But the main targets of Bentham’s criticism were the crudest forms of fiction – those where the court accepts something to be a fact which the court knows to be a lie.223 It is crucial to appreciate that he did not object to necessary or useful fictions. This is just as well, for we now see that ‘all legal rules, principles,

218

William Morris, Hopes and Fears for Art (1882). Prohibitions del Roy (1607) 12 Co Rep 63, 65. 220 Liford’s Case (1614) 11 Co Rep 46, 51a. 221 Commentaries on the Laws of England, above n 70 book III, 283. 222 CK Ogden, Bentham’s Theory of Fictions (1932) 2nd edn (1951) 12, 38 at 141. 223 He writes in ‘Scotch Reform’ (1808) that fiction in law is ‘a wilful falsehood, uttered by a judge, for the purpose of giving to injustice the colour of justice’. (J Bentham, ‘Scotch Reform’ in J Bowring (ed), Works of Jeremy Bentham vol 5 (Edinburgh, William Tait; London, Marshall & Co, 1843) 13.) 219

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Conclusion concepts, standards – all generalized statements of law are fictions’,224 as one of the American Legal Realists put it. These ‘fictions of Jurisprudence’ are ‘in essence…metaphors of speech, terminological devices, and not distortions of truth’.225 The maxim in fictione juris consistit aequitas was considered in the Court of Appeal in Chancery in the last days of the short life of that Court, but James LJ purported to bar its admission to the modern era: [A]lthough it used to be said in fictione juris consistit æquitas, I think that in these prosaic days, and in the old age of the Court, we do not indulge in those flights of imagination which our predecessors did.226

This is the same judge who, as we saw earlier, expressed the view that fiduciary duties must be strictly enforced for the safety of mankind, so his Lordship was not averse to imaginative fictions of the mainstream kind. When one sees that all law is fiction of one sort or another, one sees clearly that one’s choice is only which fiction to prefer. Distinctions and choice between varieties of fiction is the main concern of chapter four. For now let us agree with James LJ that we should not indulge in flights of imagination, but let us not avoid them altogether. This chapter has shown that the progress of law towards better justice is a progress that takes place in particular cases by imaginative leaps within customary or communal bounds. It is not neat progress and it does not produce a perfect integrated scheme of jurisprudence, but it does locate a humane element of ‘ad lib’ in the chancery script, and it locates a green spot in the scheme − even if it is no more elegant than the hopeful hopping of the frog.

224 J Frank, Law and the Modern Mind (New York, Brentano’s, 1930) 167 quoted in J Walter Jones, ‘The Fiction Theory’ in Historical Introduction to the Theory of Law (Oxford, Clarendon Press, 1940) 175. 225 J Walter Jones, ibid at 177. 226 Re Adansonia Fibre Company v Miles’ Claim (1873–74) LR 9 Ch App 635 at 644 (WM James LJ).

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4 Figuring Equity Equity. In examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. Sir Henry Maine, Ancient Law (1861)1

I

T HAS BEEN said that, in its origin, equity was a ‘general fiction’;2 but the key to comprehending equity is to understand that it is still a fiction and to seek to understand what sort of fiction it is. Distinguishing one sort of fiction from another is especially important when it comes to explaining equity’s relationship to general law, since all law is broadly speaking a fictional account of justice. In any society governed by the rule of law there is only what Aristotle called ‘justice in a metaphorical sense’.3 No society attains the Aristotelian ideal of ‘political justice’ under which one finds ‘free and (actually or proportionately) equal persons, living a common life for the purpose of satisfying their needs’.4 There is, then, a ‘justice story’ and for us the challenge is to appreciate the distinct fictional modes which are employed to formulate and express its legal and equitable aspects. We should not assume that a monolithic law relates to a monolithic literature. Different laws correspond more closely to some types of literature than to others. In this chapter, I will show that equity functions – as the best metaphors and figures function – by translating abstractions into the tangible material of everyday life. I do not argue that equity operates as if it were metaphor, but that equity is – literally – metaphor. Humpty Dumpty was not an egg; he only ‘looked like an egg’ said Alice,5 but between equity and metaphor there is more than mere resemblance, there is functional identity. It follows from this that equity is 1 Henry S Maine, ch 3 ‘Law of Nature and Equity’ in Ancient Law (1861) Everyman edn (London, Dent, 1917) 34. 2 R Pound The Spirit of the Common Law (Francestown, NH, Marshall Jones, 1921) 171: ‘In their origin equity and natural law are also general fictions along with interpretation’. 3 Aristotle, The Nichomachean Ethics (5.6.4) (trans H Rackham) Aristotle: in twenty-three volumes (London, Heinemann, 1934) vol 19. 4 Ibid. 5 Lewis Carroll, Through the Looking Glass, and What Alice Found There (London, Macmillan, 1871) ch 6.

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Figuring Equity essentially poetic, since metaphor – which has been called the ‘figure of figures’6 – is a model of poetry. If we follow Maine’s instruction to seek the earliest origin of equity, we find it in the poetic oratory of the rhetorician Gorgias.7 In this chapter we will see that poetry – and metaphor especially – expresses abstract ideas in terms of the everyday tangible material of life and that this parallels equity’s action of turning the law’s general prosaic abstraction towards the particularities of individual cases. (I will resist the urge to call it ‘poetic justice’, but equity can be regarded as a poetic branch of the justice story.) The term ‘prosaic abstraction’ requires some explanation. ‘Abstraction’ describes those processes, including generalisation, by which the law draws away from the particular and concrete matter of life. ‘Prosaic’ indicates that the lines drawn by legal abstraction are drawn in a simplistic, routine, straightforward and unimaginative way. To say that the general law is prosaic and abstract is not to denigrate it. Prose makes possible the poetry of metaphor and the law makes possible the poetry of equity. As Terence Hawkes observes: ‘the very distinction we make between the “literal” and the “metaphorical” is only available in societies which have acquired the capacity for abstract thought’.8 The fact that the general law is a fictional prosaic abstraction and that equity represents a turning back to the concrete reality of life does not mean that equity is less fictional than the general law. Hawkes’ comment on metaphor in Elizabethan poetry applies as well to equity in law: it is ‘artificial, because its aim is to be natural’.9 As a figurative and poetic fiction superadded to the prosaic fiction of the general law, equity may be considered even more fictional than the general law. This explains why, since earliest times, the relationship between general law and equity has been expressed in metaphorical terms. I would go so far as to say that equity’s relationship with routine law cannot be explained or understood in any terms other than the metaphorical. The most profound metaphor for equity portrays it as the soul of the law. Jean Bodin said that ‘law without equity is like a body without a soul’.10 William West had equity in mind when he said, likewise, that ‘our Laws (as all other laws) have two parts, that is to say, the flesh and soule, The letter resembleth the flesh, the intent and reason, the soule: Nam ratio legis est anima legis’.11 Profound though this metaphor is, it is not especially informative. A letter might have a spirit as a

6 J Culler, ‘The Turns of Metaphor’ in The Pursuit of Signs: Semiotics, Literature, Deconstruction (Ithaca, Cornell University Press, 1981) 189. Aristotle praises metaphor in his Rhetoric (3.2.6- 3.11.16) and in his Poetics (chs 19–22) 7 See ch 1 at 27. 8 T Hawkes, Metaphor (London, Methuen, 1972) 39. 9 Ibid at 20. 10 Jean Bodin, Six livres de la république (1576) (trans MJ Tooley) Six Books of the Commonwealth (Oxford, Basil Blackwell, 1955) book VI ch 6. 11 W West, The Second Part of Symboleography (1594) references are to the popular 1641 edition (London, Miles Flesher and Robert Young, 1641) 177, section 11. For an argument that equity and law resemble different types of space represented in different types of flesh (a more down-to-earth explanation of equity’s relationship to law than the image of body and spirit) see L Dahlberg, ‘Achilles’ Foot and the Law: Legal Space(s), Striated and Smooth’ in D Carpi (ed), Practising Equity, Addressing

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General Law as Abstract Fiction body has a soul, but to compare spirit to soul is to compare one abstraction with another and this adds little to our understanding of equity. West’s more mundane metaphors for equity are more informative. Where, for example, he likens equity to the kernel of a nut, saying that ‘as the profit of the Nut is not in the shell, but in the kernell, so the fruit of the Law is not in the letter, but in the sence’.12 As well as making the abstract distinction between form and substance, this metaphor also provides a clue to the fact that equitable interests under uses (and trusts) are ‘beneficial’ interests. We will see that West also compares equity to a bespoke shoe and to the ingredient which turns poison into medicine. It is incumbent on us, if we want to understand equity, to take up Maine’s challenge to find the figure of equity – not merely in its original form, but in the form most apt to elucidate how equity operates today.

General Law as Abstract Fiction The artifice of the law is to employ abstract concepts to give legal shape to things which have no natural existence. This is most apparent in the law of property, where it is clear that realty is not the same thing as reality. The law speaks of estates in land, but there is often only soil, and sometimes not even that.13 Carol M Rose has said of the entire system of property law that ‘metaphor is the heart of the matter’,14 referring to the fiction that property rights confer exclusive dominion. Property law is certainly a fiction, but in its general scheme it is more like myth than metaphor. The legal story of property is a creation myth that purports to provide an original and comprehensive account of human relations with stuff and space. The comparatist FH Lawson once asserted that the English law of property is ‘more logical and more abstract than anything that to my knowledge can be found in any other law in the world’.15 The truth is that every system of property law is logical and abstract because every one is a fiction designed to obscure the simple fact that, absent law, territories and things belong to those who are swift and strong enough to take and keep them. The story of land law is truly a plot. The artifice of property law becomes apparent on those occasions when the logic of one part of the story directly conflicts with the logic of another part; we saw an example of this Law: Equity in Law and Literature (Heidelberg, Universitätsverlag Winter, 2008) 119–39. Dahlberg applies the terms espace strié and espace lisse borrowed from G Deleuze and F Guattari, Mille plateaux (Paris, Minui, 1980) 592–625. 12 West, ibid. 13 K Gray, ‘Property in Thin Air’ 50(2) (1991) Cambridge Law Journal 252. 14 CM Rose, ‘Canons of Property Talk, or, Blackstone’s Anxiety’ (1998) 108 Yale Law Journal 601, 631. 15 FH Lawson, The Rational Strength of English Law (London, Stevens and Sons, 1951) 79. Kevin Gray and Susan F Gray have explored the potential for a ‘symbolic or calculised logic’ of land law. (K Gray and SF Gray, ‘The Rhetoric of Realty’ in J Getzler (ed), Rationalizing Property, Equity and Trusts (London, LexisNexis, Butterworths, 2003) 204–80, 213.)

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Figuring Equity in chapter one.16 Arguably ‘the trust’ itself is another example, since it is an artificial conflict between property and obligation. Owen Barfield referred to the ‘fiction on which the law of trusteeship is based’, noting that ‘[a]nyone who is a trustee will know how absurdly remote from reality is the . . .interpretation of his position, according to which he is the “owner” of the trust property’.17 Even a relatively straightforward transaction can cause the most valuable legal estate in the English property law system – the fee simple absolute in possession – to disappear. This is despite the fact that this estate must in theory belong to someone at all times or revert to the Crown. Suppose that the estate is given to a friend for life and a sibling in remainder. The friend now has an equitable life interest and the sibling has an equitable fee simple absolute in remainder, but the legal fee simple absolute in possession has disappeared. This disappearing act is just a semantic trick arising from a too literal reading of the statute which says that the fee simple absolute in possession is the only fee simple estate capable of having legal (as opposed to merely equitable) status.18 Get the trick right, though, and the whole story has to be rewritten. Something like this occurred in the important Australian case of Mabo v Queensland19 when the English mythology of property law collided with the story told by the indigenous inhabitants of the Meriam Islands. The indigenous islanders successfully claimed native entitlement to the use and enjoyment of the islands despite the State of Queensland’s claim to own an English-style fee simple estate in the land. The clash of legal cultures was ultimately resolvable because, despite differences in their fictional accounts of property, all parties shared the same fundamental faith that any fiction of property should be founded, not on force, but on the idea of ‘being there first’. Political and practical commitment to the fiction of property law is now so great that the idea of proprietary entitlement ‘to’, ‘in’ or ‘over’ a thing has come to be regarded as a real thing in its own right. One indicator of this phenomenon is the fact that property is nowadays employed metaphorically as a vehicle20 to represent abstractions such as ‘information’ and ‘invention’; thus we talk of ‘intellectual property’. Lord Millett, a highly respected judge of commercial chancery matters, once suggested in an article written extrajudicially that ‘the categorisation of information as property owes more to metaphor than to legal accuracy’.21 His Lordship was right to criticise this metaphor, but not because metaphors cannot be legally accurate. Criticism of this

16

At 13−14. O Barfield, ‘Poetic Diction and Legal Fiction’ (the essay has been reproduced in several collections, including GB Tennyson (ed), A Barfield Reader: Selections from the Writings of Owen Barfield (Middletown, CT, Wesleyan University Press, 1999) 69. 18 The Law of Property Act 1925 s 1(1). 19 Mabo v Queensland (No 2) (1992) 66 ALJR 408, High Court of Australia. Sadly the plaintiff, Eddie Koiki Mabo (1936–92) died just months before judgment was awarded in favour of his people. 20 IA Richards coined the terms ‘tenor’ and ‘vehicle’ to describe, respectively, the meaning of a metaphor and the means by which it is expressed (The Philosophy of Rhetoric (Oxford, Oxford University Press, 1936)). I will use these terms where convenient. 21 P Millett, ‘Remedies: The Error in Lister v Stubbs’ in P Birks (ed), The Frontiers of Liability (Oxford, Oxford University Press, 1994) 51, 53. 17

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General Law as Abstract Fiction metaphor was appropriate because it is a poor metaphor. I argue below that metaphors are most effective when a tangible thing is employed as a vehicle to carry an abstract idea. To use the abstract idea of property to convey another abstract idea such as ‘information’ is bad literature and it is that which makes it bad law.22

The Reductive Nature of Legal Abstraction The law’s general response to facts is to distil them down to the essential. If the essential facts raise an issue, the facts will be expressed in terms of the law’s abstract conceptual language to produce or refuse a remedy. Take the simple case of a red car driven into the trunk of a mature oak tree by a driver who was forced to swerve to avoid an Arabian horse that had escaped from its owner, causing the driver to lose an arm in the crash. The law distils the essential facts to remove such decorative but legally irrelevant facts as the colour of the car, the breed of horse and the species of tree. A similar process of distillation can be observed in Coltman v Bibby Tankers Ltd, where Glidewell LJ in the Court of Appeal acknowledged that Cunard cruising ships might be ‘luxurious vehicles’, but rejected such a description as ‘the language of hyperbole or poetry’. Their Lordships tell us that in the context of the relevant statute, a vehicle is simply ‘a means of conveying people or goods on land’.23 Returning to the case of the car and the horse, which the law has distilled down to the legally essential facts (which is something less than the vitally meaningful facts), the law proceeds to identify the essential issue to be whether the owner of the horse should compensate for the loss of the driver’s arm. This issue is addressed by expressing the essential facts in abstract terms, such as the ‘duty of care in the tort of negligence’. Thus the question becomes, ‘did the owner of the horse breach any actionable duty of care owed to the driver of the car, causing a loss; and if so was the driver’s loss a foreseeable consequence of the breach and, assuming that the owner of the horse is liable, did the driver of the car contribute to their own loss (say by driving too fast) in such a way that their compensation ought to be reduced?’ The full story having been thus distilled and retold in abstract terms, an outcome is reached. Assuming that these issues are decided in favour of the driver, the outcome will be an award of monetary damages. The law cannot repair actual harm, so it resorts to monetary compensation as a way of representing actual reparation. De Montesquieu observed that money is ‘a sign which represents the

22 For an argument which is, on the whole, suspicious of metaphors within the law of Intellectual Property, see P Loughlan, ‘Pirates, Parasites, Reapers, Sowers, Fruits, Foxes . . . The Metaphors of Intellectual Property’ (2006) 28 Sydney Law Review 211. 23 Coltman v Bibby Tankers Ltd [1987] 2 WLR 1098, 1107 (the decision of the Court of Appeal was overruled in relation to other definitional issues ([1988] AC 276 (HL)).

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Figuring Equity value of all merchandizes’,24 but here money goes further – it is the law’s sign for the value of life and limb. The assumption made by English tort law that a sum of money is appropriate compensation for the loss of an arm is similar to the assumption made by English contract law that money, regardless of amount, is adequate consideration for the purchase of things, no matter how valuable.25 Thus the law’s process, as exemplified in the case of compensation for loss caused by a careless car crash, moves from tangible reality, to essential fact, to abstract concept, until the tangible and the abstract are united in a tangible abstraction – money. One can hardly overstate the significance of economic metaphors to legal reasoning. JW Harris was alert to their influence on the issue of allocation of property rights between home-sharers. In this context it is sometimes claimed that domestic labour should give rise to a right in property because the expenditure of labour is equivalent to the expenditure of cash. Harris disputed this: When I work I may be said to ‘expend’ physical or mental energy and I may, perhaps, feel in some way depleted. But it is not the case, as with spending money, that I cease to own some resource which formerly I did own…arguments for property-distribution based on labour-ownership, or the connected notion of self-ownership, are spurious. Quantum meruit claims were, in law, once founded on the fiction of promise. Are we better off if we erect claims arising from labour on the metaphor of depletion and transfer?26

Harris’ rhetorical question implies that we would be better off without any metaphor at all, but it is significant that he acknowledged that when the old fiction departed, a metaphor stepped in to take its place. He does not acknowledge it, but the truth is that a fiction of some sort is required to fill the perceived justice gap between the legal owner’s claim to own outright and the non-legal owner’s claim to a beneficial share in equity based on non-financial contributions. The legal owner’s prosaic insistence on the abstract fiction of general entitlement invites the challenge of a particular equitable claim framed in the more figurative fictional language of metaphor. Harris asked ‘are we better off?’ with the metaphor as opposed to the fiction of promise. If we read his rhetorical question literally it invites a genuine inquiry into the relative merits of candidate fictional justifications for equitable intervention. Scrutiny of Harris’ own example reveals that his opposition to the metaphor ‘of depletion and transfer’ is based on the erroneous assumption that cash is somehow tangible in a way that labour is not. True, cash can be held in the hand, but labour surely feels every bit as real as money. Labour is a fact; money is just a metaphor associated with metal discs and paper sheets.

24 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (1748) book 22 ch 2 (the translation is from The Complete Works of M. de Montesquieu . . .in four volumes (London, T Evans, 1777) vol 2. 25 Bolton v Madden (1873) LR 9 QB 57. 26 JW Harris, ‘Doctrine, Justice, and Home-sharing’ (1999) 19(3) Oxford Journal of Legal Studies 421, 444.

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The Merit of Metaphor The law’s general tendency to reduce life to money occasionally produces a disconcerting insouciance with regard to significant matters of life, and death. Foskett v McKeown27 is a case of this sort. Mr McKeown had taken deposits of money on trust to build houses for the depositors, but he breached his trust and used the money for his own benefit. Some of it was used to pay insurance premiums on a life policy on his life. He subsequently committed suicide and the depositors claimed a share of the proceeds of the policy. The question, in the words of Lord Browne-Wilkinson, was whether the sums wrongfully used to pay the insurance premiums ‘fall to be treated as analogous to the expenditure of cash on the physical property of another or as analogous to the mixture of moneys in a bank account’.28 In other words, the question was whether each claimant should merely recover his or her deposit plus interest or a part of the insurance proceeds proportionate to their monetary contribution to the premiums. Their Lordships preferred the latter analysis – the analogy of mixed moneys in a bank account – but what is significant for us is the fact that their Lordships made their choice from such a limited range of analogies and the fact that neither candidate analogy attached any weight at all to Mr McKeown’s significant non-financial contribution – his life. The analysis started and ended with money.

The Merit of Metaphor I have demonstrated that the general mode of legal fiction is one that takes tangible facts and translates them into abstract ideas. It is a prosaic process that confines a potentially limitless variety of factual material to a limited set of preordained legal categories. There is little room in these categories for human feelings or passion or for a great deal else that makes up the fullness of life. Dickens expressed this very well when he wrote: ‘The body! It is the lawyer’s term for the restless, whirling mass of cares and anxieties, affections, hopes, and griefs, that make up the living man’.29 The legal process of abstraction and categorisation is resistant to the imagination of new categories and will not tolerate a case without a category. The metaphorical mode of fiction is exactly opposite. Metaphors connect abstract ideas to tangible things in the imaginative way we call ‘poetic’; as Shakespeare wrote: ‘The poet’s eye…Doth glance from heaven to earth, from earth to heaven’.30 According to poetic metaphor, love is a rose blooming or a peel of bells; in law, the rose is a moveable asset and the bells are a nuisance. These examples illustrate what I mean by ‘tangible’: the vehicle of a poetic metaphor is very often a physical thing which excites the sense of sight or 27

Foskett v McKeown [2001] 1 AC 102 (HL). Ibid at 110. Charles Dickens, The Pickwick Papers (London, 1836–37) ch 45. 30 William Shakespeare, A Midsummer Night’s Dream (5.1.13). All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated. 28 29

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Figuring Equity scent or sound or taste or touch. It has a ‘propensity for heightening arousal and the intensity of experience’.31 Tangible things touch us as we imagine that we touch them – they provoke feelings because we imagine the physical feel of them. Demetrius cites ‘rough nature’ as such a good metaphor that it seems to be literally true.32 The examples of the rose and bells are typical of the most effective metaphors in that they communicate an abstract tenor (love) by means of a tangible vehicle. It is less usual, but potentially no less effective, for a metaphor to communicate a tangible tenor by means of an abstract vehicle – one could, for instance, talk of a fog descending like hopelessness as effectively as one might talk of hopelessness descending like a fog. When the vehicle travels in the less usual direction (from the tangible to the abstract) it traverses the same distance as a vehicle travelling in the more usual way from abstract to tangible, so it has much of the same poetic power. It is as if the distance of displacement creates, and directly correlates with, the ‘potential energy’ of the metaphor. Metaphors that communicate an abstract tenor by means of an abstract vehicle are less powerful. We saw earlier how the metaphor of ‘intellectual property’ fails because it relies on the abstract idea of property to convey the abstract nature of intellect. What matters is that the tangible and the abstract are connected imaginatively in a way which tends to make us feel what could not otherwise be felt. There is a flavour of this in Hawkes’ observation that metaphor ‘is not fanciful ‘embroidery’ of the facts’, but ‘a way of thinking and of living; an imaginative projection of the truth’.33 Another way of stating that the metaphor must be tangible is to say that it must be ‘to hand’. Thus in his treatise On Style, Demetrius writes that metaphors should not be ‘far-fetched’ but should be derived from similar ideas close at hand. For example, there is a resemblance between a general, a pilot, and a chariot-driver. These are all rulers. It will, then, be quite safe to describe the general as ‘the city’s pilot’, and conversely to describe the pilot as ‘the ship’s ruler’.34

This shows how an everyday (and in that sense ‘tangible’) vehicle can be used to convey a tenor of the same order. However, Demetrius goes on to warn that not all metaphors are interchangeable in this way: ‘The poet was justified in calling the mountain-slope “Ida’s foot”, but he would not be allowed to describe a man’s foot as his “mountain-slope”’.35 A mountain slope is as physical as a man’s foot, but it is not so tangible in the sense of being ‘close to hand’. The claim that the best poetic metaphors connect abstractions to tangible or everyday matter has

31 MJ Apter, ‘Metaphor as Synergy’ in DS Miall (ed), Metaphor: Problems and Perspectives (Sussex, The Harvester Press, 1982) 55–70, 55. 32 TA Moxon (ed and trans) Demetrius On Style (section 86) Everyman’s Library edn (London, JM Dent, 1934, 1953) 220. 33 Metaphor, above n 8 at 39. 34 Above n 32 at 220 (section 78) . 35 Ibid at section 79. The ‘poet’ here is Homer, and the reference is to The Iliad (20.218).

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The Merit of Metaphor some empirical evidence to support it. In one survey of six genres – conversation, national news reports, popular science, magazine advertising, modern novels and modern English lyric poetry – the percentage of metaphors connecting intangible concepts to tangible things (the surveyor labels them ‘concretizing’ metaphors) was highest in lyric poetry (43 per cent) and lowest in popular science (3 per cent).36 Better than any empirical survey, there is Shakespeare’s wisdom to support this view. The passage from A Midsummer Night’s Dream quoted earlier, continues: ‘And as imagination bodies forth / The forms of things unknown, the poet’s pen / Turns them to shapes and gives to airy nothing / A local habitation and a name’ (5.1.14–17). Shakespeare is saying that poetry (in which we can include metaphor) expresses abstractions in everyday terms that we can relate to. There is nothing more tangible and affective than ‘a local habitation’ – a home.37 The notion of ‘a name’ is similarly touching. Shakespeare might have had in mind Aristotle’s observation that metaphors ‘give names to nameless things’.38 Shakespeare’s contemporary, Sir Philip Sydney, saw the poetic art of naming at work in the law. In his Defense of Poesie he mentions the lawyers’ contemporary practice of inventing fictional litigants and giving them names as a method for making the legal picture ‘more lively’, saying that ‘[p]ainting men, they cannot leave men namelesse’.39 Poetic metaphor endows abstractions with qualities which make them easier to relate to and more readily felt. We can say, in short, that poetry brings the abstract to life. I may be relying too heavily on the example of Shakespeare, whose poetry was distinctively ‘natural’. If I need a defence, it will be found in the fact that Aristotle relied heavily on Homer and reached similar conclusions as to the nature of the poetic and the nature of an effective metaphor. As Demetrius observed, for Aristotle, ‘the best form of metaphor is the so-called “active” metaphor, when inanimate objects are introduced as active, and endowed with life’.40 In Aristotle’s own words, the best metaphor ‘brings the idea vividly before us’.41 Demetrius cites as one of Aristotle’s favourite metaphors an example taken from book four of The Iliad where Pandarus loosed his bow in the direction of Menelaus and ‘[t]he keen arrow leapt forth among the crowd on eager wings’.42 The most effective figures are the most affective. They arouse our feelings because they are

36 A Goatly, The Language of Metaphors (London and New York, Routledge, 1997) 311–28. The remaining metaphors were what the surveyor calls ‘transfer’ metaphors because they are not concerned to express an abstraction in tangible terms, but merely to use one thing to denote another. The author provides the somewhat bizarre photographic example of an advertisement for Dutch cucumber which shows the cucumber being posted as if it were mail (at 324). 37 Home and homecoming are qualities in other ways associated with equity, as we will see in chs 5 and 7. 38 Aristotle, On The Art Of Poetry (21.15) (trans I Bywater) (Oxford, Clarendon Press, 1920). 39 (1580–81, pub. Ponsonby, 1595) (reproduced in The Old English Prose Writers vol II (Cambridge, Hilliard and Brown, 1831) 56). 40 Moxon, Demetrius On Style (section 81), above n 32 at 220. 41 Aristotle. On The Art Of Poetry (trans TA Moxon) book III ch X. 42 Homer, The Iliad book IV, 122–26.

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Figuring Equity conveyed by (named after) the tangible things of everyday life and they move us because they are quickened – made moving – with vital attributes. The poetic nature of metaphor achieves the sort of connection between passion and prose that Margaret Schlegel recommends in EM Forster’s Howards End.43 To paraphrase Forster, metaphor connects the prose and the passion in a way that exalts both.44 Victoria Kahn sees a similar capacity in Aristotle’s idea of mimesis: ‘[m]imesis and aesthetics – poetics and passion – these are the neglected terms in the dry judicial discourse in the later history of liberalism’.45 Christopher Prendergast makes express the connection between metaphor and mimesis: [M]imesis and metaphor are discovery procedures, heuristic mechanisms for representing the movements of Nature, the poetic materialisation of the ‘entelechic’ properties of material life itself . . ..they are a distinctively human form of knowing what is in the world.46

There is a correspondence between mimesis and metaphor and, if one’s definitions are broad enough, one may even be considered a subset of the other. Reading the terms more literally, though, one finds this difference: that mimesis is more directly reflective and metaphor is more transformative. Metaphor always connects the abstract to tangible nature and tangible nature to the abstract in a way that transforms or translates both.47 Metaphor never simply reflects. The law, in contrast to metaphor and other aspects of poetry, tends to suppress sense and sensibility. It is a trait that Dickens observes in the lawyer Jaggers who we are told would suffer ‘no feelings’ to be aired in his office.48 Dickens’ portrayal of lawyers and the legal profession is nearly always in the mode of caricature, usually negative, but he is exaggerating a truth. The general mode of legal expression has an alienating effect on the human subject to the law because it retells the tangible facts of human life in conceptually abstract terms – soil and stone become estate; life and limb become monetary damages; a home bought with borrowed money is transformed into security for a charge. The prosaic and abstract world of the law is like the abstract prosaic world of the Wilcoxes in Forster’s Howards End, where ‘love means marriage settlements; death, death duties’.49 The law’s fictional language tends to take us in the opposite direction from poetry: it takes us away from home – figuratively, and sometimes literally. The law’s general tendency to translate real life into abstraction emerges clearly in Shakespeare’s The Winter’s Tale, where King Leontes sits as judge over his wife Hermione whom he suspects of 43

EM Forster, Howards End (1910) (London, Penguin Classics, 1988) ch 22 at 188. Ibid. V Kahn, Wayward Contracts: The Crisis of Political Obligation in England 1640–1674 (Princeton, Princeton University Press, 2004) 284. Terence Cave ‘defines’ mimesis broadly as: ‘Representation of reality’ (T Cave, Recognitions: A Study in Poetics (Oxford, Clarendon Press, 1988) 1–24, 22). 46 C Prendergast, The Order of Mimesis: Balzac, Stendhal, Nerval, Flaubert (Cambridge, Cambridge University Press, 1986) 21. 47 The Latin for the Greek metaphora is translatio. 48 Charles Dickens, Great Expectations (1860–61) ch 51. 49 Howards End, above n 43, ch 22 at 41. 44 45

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The Merit of Metaphor adultery. She says ‘Sir, you speak a language that I understand not: / My life stands in the level of your dreams, which I’ll lay down’ (3.2.81–82). To which he replies, ‘Your actions are my dreams’ (3.2.83). Shakespeare, who saw so clearly that poetry expresses the abstract in tangible terms, saw with equal clarity that legal language works in an opposite way by turning tangible actions into legal dreams. Little wonder that the jurist Oliver Wendell Holmes (the son of a poet) once opined that ‘the law is not the place for the artist or the poet’.50 Yet law does have a poetic dimension. It is seen to a small degree even in the routines of the law – the law routinely resorts to such metaphors as ‘incorporation’51 and ‘chain of causation’ and ‘meeting of minds’ – but it is most clearly seen in equity. The general law is prosaic in the sense of being ‘formal’, ‘normal’ and ‘routine’, but equity exists to challenge the ‘formal’, ‘normal’ routine of the general law where it causes harm in a particular case. We can say that equity is to general law, what metaphor is to clichéd prose. I am recalling the words of the lawyerpoet Wallace Stevens who wrote that ‘Reality is a cliché from which we escape by metaphor’.52 For ‘reality’ I would substitute ‘normality’ or ‘routine’. Effective metaphors are non-conventional.53 I have in mind James Boyd White’s extensive critique of cliché, slogan, and other forms of ‘dead speech’ which he relates in his book Living Speech.54 Professor White observes that poetry ‘is largely built upon the formal expectations that it first creates, then modifies, confirms or transforms’.55 This presents a parallel with equity’s function of transforming law by building on, and not undermining, the formal structures of law. Stevens’ error was to establish metaphor as an independent reality, when the truth is that metaphor is only real because it operates, and can only operate, against a backdrop of language that is prosaic, abstract and routine. The rule of law is necessarily flawed since it places diverse humanity under a scheme of general regulation. The principle of equity seeks to correct the error by moving from the prosaic cliché of the general scheme to the poem of the particular human in the particular case. It would be a mistake to insist that the same

50 OW Holmes, ‘The Profession of the Law’ in Oliver Wendell Holmes: Collected Legal Papers (New York, Harcourt, Brace and Howe, 1920) 29–34, 29–30. 51 This example is employed by George Lakoff to demonstrate that ‘[l]aw is a major area where metaphor is made real’ (G Lakoff, ‘Contemporary Theory of Metaphor’ in A Ortony (ed), Metaphor and Thought 2nd edn (Cambridge, Cambridge University Press, 1993) 202–51, 243. He could have gone further by observing that because the corporation is a legal creation it is more real, in law, than a human being. Owen Barfield considers the legal idea of incorporation to be an exemplar of the ‘personification of abstractions’ − a type of ‘metaphor which occurs both in law and in poetry’ (Barfield, ‘Poetic Diction and Legal Fiction’ in Tennyson (ed), A Barfield Reader, above n 17 at 64). 52 W Stevens, Adagia in Opus Posthumous (London, Faber & Faber, 1959) 179. 53 Goatly, The Language of Metaphors, above n 36 at 8. 54 JB White, Living Speech: Resisting the Empire of Force (Princeton, Princeton University Press, 2006). Reviewed by J Etxabe (2008) 2(1) Law and Humanities 138–146. 55 Living Speech, ibid at 97.

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Figuring Equity reductionist, abstract and prosaic language should be employed to formulate equity out of law as is used to formulate law out of life. Equity demands to be distinct: … [a]ny system which is compelled to reconcile its decisions with its formulated rules must have an escape from those rules. Equity furnished that escape originally. If we are to continue with abstractions, equity must continue to furnish that escape today . . . If the tradition of common law requires abstractions, that same tradition requires that equity be free from them in order to make legal abstractions more elastic.56

On the other side, Thomas C Grey once wrote that ‘Jurisprudence is not the same as poetics . . . Law is poetry is indeed only a metaphor’.57 Criticising this conclusion, Steven L Winter notes that the word ‘only’ betrays Grey’s ‘residual objectivism . . .as if, by virtue of its metaphorical quality, the similarity between law and poetry were somehow less than real’.58 Winter’s argument, based on the psychology of cognition, is that metaphor is a real feature of rationality because the human mind reasons through the association of images. I cannot vouch for the science, but I agree with the conclusion. Certainly I would argue that metaphor is the best available rationality when it comes to understanding equity’s relationship to general law. The fitting response to Grey’s assertion that the ‘Law is poetry is only metaphor’ is to say that only metaphor has the capacity to reveal that equity actually is the poetry of law. We need to overcome the prejudice that regards metaphorical reasoning as second-class reasoning, just as we need to overcome the prejudice that equity is second-class jurisprudence. In the formulation of certain transcendental concepts – such as ‘beauty’, ‘love’ and ‘heaven’ – metaphor and other forms of imaginative fiction (including fable and parable) supply the best available rationality.59 The authors of a paper on ‘Metaphor in Science’ go so far as to say that ‘we need metaphor because in some cases it is the only way to say what we mean’.60 Equity is such a case. It is true, as Michael H Frost writes, that ‘writers use legal metaphors … for their non-rational or intuitive impact’,61 but this does not diminish the rational quality of metaphor.

56

T Arnold, ‘The Restatement of the Law of Trusts’ (1931) 31 Columbia Law Review 800, 822–23. TC Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge, Mass, Harvard University Press, 1991) 110. 58 SL Winter, ‘Contingency and Community In Normative Practice’ (1991) 139 University of Pennsylvania Law Review 963, 993; and see SL Winter, A Clearing In The Forest: Law, Life And Mind (Chicago, University of Chicago Press, 2001). Earlier articles in the same vein by the same author include: ‘Transcendental nonsense, metaphoric reasoning and the cognitive stakes for law’ (1989) 137 University of Pennsylvania Law Review 1105–1237; ‘Death Is the Mother of Metaphor’ (1992) 105 Harvard Law Review 745 and ‘The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning’ (1989) 87 Michigan Law Review 2225. 59 For a fine argument that metaphor is literal when it describes the sublime, see SR Levin, Metaphoric Worlds: Conceptions of a Romantic Nature (New Haven, Yale University Press, 1988). 60 J Martin and R Harré, ‘Metaphor in Science’ in DS Miall (ed), Metaphor: Problems and Perspectives, above n 31 at 89–105, 95 (emphasis added). 61 MH Frost, ‘Greco-Roman Analysis of Metaphoric Reasoning’ ch 5 in Introduction to Classical Legal Rhetoric: A Lost Heritage (Aldershot, Ashgate, 2005) 95. 57

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The Merit of Metaphor Indeed, Frost acknowledges the possibility of ‘metaphoric reasoning’, and notes that ‘[f]rom a classical perspective, metaphors had a clear logical and emotional function in legal discourse’.62 Cicero acknowledged that metaphors can be useful ‘when a thing cannot be expressed by a proper word’.63 He attributed this to necessity arising from the poverty of prose.64 Quintilian put it more positively: By a trope is meant the artistic alteration of a word or phrase from its proper meaning to another….the commonest and by far the most beautiful of tropes, namely, metaphor, the Greek term for our translatio…. adds to the copiousness of language by the interchange of words and by borrowing, and finally succeeds in accomplishing the supremely difficult task of providing a name for everything. A noun or a verb is transferred from the place to which it properly belongs to another where there is either no literal term or the transferred is better than the literal.65

The ability of metaphor to connect abstractions to tangible things does indeed lend the trope a practical usefulness. Quintilian ‘assumed that metaphorical language was as integral to legal thinking as the language of logic’.66 Numerous modern authors have taken up the defence of metaphor’s cognitive credentials. Max Black argues that ‘Metaphorical thought is a distinctive mode of achieving insight’67 and Shibles observes, similarly, that ‘[w]e do not always have a thought and then put it into metaphorical terms…rather the metaphor itself interacts with and helps constitute the thought’.68 Even before science invented the so-called ‘string’ theory, Richard Boyd had observed that metaphors have the capacity to express novel scientific theories in a way that literal language cannot.69 Surely there can be no scientific objection to constituting our legal idea of equity in terms of metaphor. Certainly there can be no reasonable objection to explaining equity by means of metaphor: ‘metaphor does not have to be the villain; the alternative ways of seeing that it affords are not only an advantage in educational contexts, but a necessary feature of them’.70 Rational expression must be clear expression, especially in a legal context – ‘the sovereign virtue for the judge is clearness’.71 It is sometimes assumed that metaphors lack clarity compared with literal language, but I agree with Demetrius who

62

Ibid at 85. Cicero, De Oratore (trans W Guthrie) book III ch 38. 64 Ibid at 3.38.155. 65 Quintilian, Institutio Oratoria (8.6) (trans HE Butler) (Cambridge, Mass, 1921) book III, 301–03. 66 Frost, ‘Greco-Roman Analysis of Metaphoric Reasoning’, above n 61 at 87. 67 M Black, Models and Metaphors (Ithaca, Cornell University Press, 1962) 237. 68 WA Shibles, An Analysis of Metaphor in the Light of WM Urban’s Theories (The Hague, Paris, Mouton, 1971) 100–01. 69 R Boyd, ‘Metaphor and Theory Change: What is “metaphor” a metaphor for?’ in Ortony (ed), Metaphor and Thought, above n 51 at 481–532. 70 A Ortony ‘Metaphor, Language, and Thought’ in Ortony (ed), ibid at 3, summarising HG Petrie and RS Oshlag, ‘Metaphor and Learning’ (in that volume) at 579–609. 71 BN Cardozo, ‘Law and Literature’ (1938–39) 48 Yale Law Journal 489, 491 (first published in the Yale Review in 1925). 63

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Figuring Equity wrote that ‘[s]ome ideas…are described in metaphors with greater clearness and exactness than if exact language had been used’.72 Equity is such an idea. Demetrius refers to ‘metaphors’ in the plural, which is significant. An isolated metaphor tends to obscure as much as it illuminates – it is like bright light which, shining on its subject from one direction, casts a strong shadow.73 Light itself is understood scientifically in terms of two metaphors – the wave and the particle – each contributing a different insight into its qualities.74 Several metaphors used in combination and shining from a variety of positions can produce excellent illumination and remove all shadows. A multiplicity of metaphors serves to moderate, in an equitable way, the extremity of viewing a subject by the spotlight of a solitary metaphor. In the first chapter of this book we noted that one leading English judge, Lord Hoffmann, is overly suspicious of metaphors in legal language75 (even to the point of seeing metaphors where none is present) but he is right to warn against excessive reliance on a single dominant metaphor, noting that ‘the more striking the metaphor, the more likely it is to distract attention from the real issues’.76 In the same place, Hoffmann opines that ‘rules formulated in terms of metaphors always cause trouble when it comes to their interpretation’.77 This is also true. General rules, such as ‘the conveyance of land must be by deed’ and ‘the speed limit is 60 miles per hour’, have a prosaic and abstract quality which does not call for the sort of imaginative expression that metaphors provide. This does not touch my claim that metaphor is essential to understanding and exercising the equitable art of modifying or moderating general rules. Andrew Ortony identifies a distinction between constructivist and nonconstructivist attitudes to metaphor: The constructivist approach seems to entail an important role for metaphor in both language and thought, but it also tends to undermine the distinction between the metaphorical and literal….the nonconstructivist position treats metaphors as rather unimportant, deviant, and parasitic on ‘normal usage’.78

Hoffmann’s suggestion that metaphors ‘cause trouble’ and ‘distract attention from the real’ betrays a solidly ‘nonconstructivist’ standpoint. My approach is more ‘constructivist’, but it is not one that ‘tends to undermine the distinction

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Moxon (ed and trans), Demetrius On Style (section 82), above n 32 at 220. On the merit of multiplicity in metaphors, see Black, Models and Metaphors, above n 67 at 25–47. Multiple metaphors must be presented as alternative perspectives on their subject – they should not be mixed (Quintilian warned against the mixed metaphor: Institutio Oratoria (8.6.50)). 74 Goatly, The Language of Metaphors, above n 36 at 2. 75 See, also, ch 1 at 21−22. For another instance, see MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd [2001] UKHL 6; [2003] 1 AC 311, 330 at para [45]. 76 Lawson v Serco Ltd; Botham v Ministry of Defence; Crofts v Veta Ltd [2006] UKHL 3; [2006] ICR 250, 258 at para [19] (HL). 77 Ibid. 78 Ortony, ‘Metaphor, Language, and Thought’ in Ortony (ed), Metaphor and Thought, above n 51 at 2. 73

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The Merit of Metaphor between metaphorical and literal’. In my view, metaphor has an important role in the elucidation and application of equity precisely because strict rules are distinctively literal. Lord Walker of Gestingthorpe has stated (in parenthesis, it should be said) that ‘it is in practice quite difficult to address the subject of confidential information without slipping into metaphorical language literally appropriate only to property rights’.79 I suspect that his Lordship’s statement confuses the literal and the metaphorical in a somewhat casual way, but I refer to it because the general tenor of the statement is a very welcome acknowledgment, at the highest level of the judiciary, that metaphor is useful, even practically necessary, in legal language.

Metaphor as Equitable Doctrine – the Example of Resulting Trust I have shown that a combination of metaphors, extended to an appropriate degree, is able to elucidate the nature of equity’s engagement with law in broad terms sufficient to guide judicial discretion. Metaphors are not appropriate to framing general rules (even though the language of ‘framing’ and ‘rule’ is itself metaphorical), but where a specific juridical idea is expressed in terms of metaphor, as the general juridical idea of equity certainly is, adequate understanding of the juridical concept will only flow from a thorough exploration of the metaphors employed. One such specific juridical idea is the idea of the ‘resulting’ trust. The resulting trust is based on the principle that a person ‘does not cease to own property simply by saying “I don’t want it”’ or simply by trying to give it away.80 Legal respect for property is such that a person is presumed to remain owner until such time as the property has actually been given away by an orthodox method of disposition. If an attempted or apparent disposition of property is unsuccessful, it is said that the property ‘jumps back’ or ‘re-sults’ to its owner.81 The conveyance of property is a prosaic fictional abstraction, so it is fitting that an accidental failure of the general rules of transfer should be corrected by the more poetic fictional mode of metaphor – indeed, metaphor is resorted to because it is the only language available to heal the failure of the general fiction. Imperfect disposition of property is a problem for the fictional scheme of property because the scheme supposes that property must be either perfectly transferred or perfectly un-transferred. One either owns property or one does not own property, so the story goes; but this story of absolute states of ownership fails to provide an adequate account when a transfer is made to someone who does not exist or for purposes which cannot be fulfilled or where a surplus arises because too much was transferred to meet a purpose. In such cases 79 OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties Ltd v Young [2007] UKHL 21; [2008] 1 AC 1, 80. 80 Vandervell v IRC [1966] Ch 261 at 275 (Plowman J) and upheld by Lord Upjohn on appeal [1967] 2 AC 291, 314 (see also, Lord Millett in Air Jamaica Ltd v Charlton [1999] 1 WLR 1399 (PC). 81 Latin: saltere (‘to jump’).

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Figuring Equity the property must be declared ownerless and pass to the Crown as bona vacantia, or the story must be changed to explain why the transferred asset belongs to the original owner despite the attempted or apparent transfer. The orthodox technique for healing this fracture in the property law fiction is, as I have said, to supplement the prosaic general account with a metaphor: the asset is said to ‘jump back’ (re-sult) to its owner. This produces a state of tension in ownership: one party (the intended recipient) appears to be the formal owner, but the original donor is the true beneficial owner. This state of divided ownership is called a trust.82 The use of metaphor to describe the resulting trust is highly appropriate, for the reasons stated above, but the problem with the simple metaphor of ‘jumping back’ is that it fails to tell the story in sufficient detail. It does not explain by what power the property jumps back instead of continuing its flight away from the original owner towards the vacuum of non-ownership (and hence into the hands of the Crown). Neither does the metaphor explain how, when property jumps back, it somehow remembers its previous owner. In short, it is hard to know how an asset can jump back unless, in fact, it had in some sense never left. In a fine treatise on this conundrum, Robert Chambers offers a solution based on a personal nexus between the donor and the recipient. The transferred asset jumps back to the donor because the recipient will otherwise be unjustly enriched at the donor’s expense. In a very broad sense it is a question of owing personally, not owning property. Chambers expresses this in more sophisticated terms when he says that ‘[a]ll resulting trusts effect restitution of what would otherwise be the unjust enrichment of the recipient’.83 In other words, Chambers’ solution to the undeniable flaw in the property law story of the resulting trust is to replace the story of property law with a whole new story based on unjust enrichment – this calls for a whole new mythology, whose fictional language comprises new general terminology: ‘rich’ and ‘en-rich’, ‘just’ and ‘un-just’. There has been no shortage of jurists willing to devote their strength to the task of telling this new story. There is, however, another way. If one is not content to replace the abstract story of property with a whole new story based on the reversal of unjust enrichment, one can try harder to heal the original. One way to do this is to adopt a better metaphor to explain what is going on when an attempted transfer fails. There needs to be some thread to maintain connection between the donor and the asset, so perhaps the benefit is reeled in, as an angler reels in the bait, despite apparently casting it off. One problem with this metaphor is that it does not depict the necessary initial separation of donor from transferred asset. A better metaphor is to imagine that the donor is throwing a bouncy (resilient) ball towards another person. If that person fails to catch the ball it should be ownerless and lost to the Crown as bona vacantia, but the judges know that this is the very last thing that any donor intends, so they erect a wall

82 83

G Watt, Trusts and Equity 3rd edn (Oxford, Oxford University Press, 2008) 23–29. R Chambers, Resulting Trusts (Oxford, Clarendon Press, 1997) 220.

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Metaphors of Equity behind the intended recipient. If the intended recipient fails to receive the asset for any reason (for example, the terms of the gift might fail to identify the intended recipient with sufficient certainty, or the intended recipient might disclaim the donation) the bouncy ball strikes the wall and ‘jumps back’ to the donor. Where it is clear that the donor clearly intends to retain no interest in the asset whatsoever (an example would be throwing a coin in the fountain in the town square) he or she will be deemed to have launched the ball so high and out of sight that if it is not caught it will clear the wall and pass to the state as ownerless property. Chambers’ analysis of the resulting trust is limited to the justice of the relationship between the donating and receiving party – reducing the whole question to inter partes unjust enrichment. It does not accommodate the fact that a discarded asset can only jump back because the judges, out of long-standing respect for the idea that there should be a barrier between private property and the state,84 have erected a wall which prevents the un-received asset from taking its natural onwards course towards the state of being ownerless. Only the full metaphor supplies the full picture.

Metaphors of Equity The Greek word ‘metaphora’ (µeταφορα´ ) denotes transfer from one place to another. To ‘ferry across’ will serve to translate the etymological elements pherein (‘to carry’; ‘to bear’) and meta (‘over’). However, the modern habit of breaking a metaphor into its constituent parts of tenor (meaning) and vehicle (that which carries the meaning) arguably takes the sense of ferrying too literally. The power of metaphor does not lie in the transport of an idea from point A to point B, but in the constant connection that a metaphor maintains between point A and point B. The aesthetic appeal of metaphor and its persuasive and explanatory power all stem from that fact that metaphor gives us, as Dr Samuel Johnson put it, ‘two ideas for one’.85 Metaphor is not so much a ferry as a bridge bearing constant streams of two-way traffic – it is the span of the metaphor and the tension it maintains between the abstract and the tangible that makes metaphor so powerful. Whatever metaphor for metaphor we choose; it should be clear that metaphor’s ability to carry a transcendental idea into tangible territory while maintaining a dynamic connection to the transcendental source is uniquely suited to the task of carrying the extra-legal concept of equity into the territory of law while maintaining a connection with equity beyond the law. 84 In The Case of the Master and Fellows of Magdalen College in Cambridge (1615) 11 Co Rep 66b-79a (Pasch 13 Jac I), Sir Edward Coke CJ approved Horace who wrote that it is wise to separate the private from the public (De Arte Poetica 391–99: ‘Fuit haec sapientia quondam, / Publica privatis secernere’). 85 Related in James Boswell’s, The Life of Samuel Johnson etc (1791) (reproduced London, J Sharpe, 1830) 376. Boswell dates the statement to 1777.

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Figuring Equity The following passage from William West’s sixteenth-century treatise Symboleography shows how metaphors are relied on to elucidate the operation of equity in law. It is significant that two different but complementary metaphors are employed to shed light on their subject from different angles: Equity is fitly compared to a Shoomakers shop that is well furnished with all sorts and manner of lasts for men’s feet, where each man may be sure to find one last or other that shall fit him, be he great or small. It is not also unfitly compared to an Apothecaries shop stored with all kind of drugs, fit for all the maladies of diseases of men. Which drugs not withstanding, in case they should be unskilfully compounded together, would instead of healing, work present death to the patient that should receive them: for it requireth the industry and exquisite art of a good Physisian, to make a right composition, discerning and tempering by just proportions good venims from evill.86

The metaphor of the bespoke shoe emphasises equity’s distinctive particularity – its concern for the individual case; the metaphor of the medicinal compound informs us that in every particular case the expert arts of a judge are required to moderate the law by subtle means. The art of ‘tempering by just proportions’ also informs us that too much of any one ingredient – whether it is too much rigour or too much leniency – is liable to poison the mix. A similar observation was made by an anonymous author in the middle of the eighteenth century: ‘what neither form and order, or absolute latitude in judging, can separately produce, is effected by the excellent temperature of both together’.87 In previous chapters it was suggested that the image of the bird and the cage usefully elucidates a range of relationships between equity and law. In the following sections, we will examine a number of different metaphorical image sets, with the aim of ascertaining which ones best elucidate the relationship between juridical equity and general law. Metaphors have been grouped by vehicle (for example the ‘bespoke shoe’) rather than by tenor (for example ‘equity’s particularity’). Vehicles can carry more than one tenor, especially where the metaphor is extended; and we will see that some metaphors for equity are effective even when extended to the point of allegory. So long as law is dependent on language and language is dependent on metaphor, so long must law depend on metaphor. The relationship between metaphor and legal language is therefore not a relationship we can afford to ignore. Justice Cardozo famously warned that ‘Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it’.88 That warning does not apply to the use of metaphors to describe the relationship between law and justice beyond the law. In this task of translation between different worlds, metaphors are essential and we can never be enslaved by them if we read equitably and not literally. When it comes to

86 87 88

West, The Second Part of Symboleography, above n 11 at 75, section 11. Anonymous, Grounds and Rudiments of Law and Equity (1749) 5, 6. Berkey v 3d Ave Ry Co 244 NY 84 (1926) at 94 (Cardozo J).

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Metaphors of Equity understanding the nature of equity and its relationship to law, metaphors are not to be watched narrowly, but chosen carefully, combined skilfully, and imaginatively read. We need to broaden our mind’s eye because there is nothing narrow about the relationship between law and justice beyond the law; it is a complex set of interactions which can only be seen in the imagination, and will only produce such practical benefits as can be imagined beyond the normal routines of the law.

Architectural Metaphors: Level Ground, Right Angles and the Leaden Rule Henry Maine was right to suspect that so ancient an idea as equity would have its origins in a simple metaphor. Maine identified ‘levelling’ as the basic picture of equity, observing that ‘the earliest notion of order doubtless involved straight lines, even surfaces, and measured distances’.89 Level ground must have had immense appeal to early human civilisation for the purposes of travel and settlement. In the case of settlement, the architectural idea of rectus supplies the classic elements of moral and legal order: the ‘upright’ and the ‘right’. Rectus also supplies the early idea of regal justice, which implies a ruler who directs the populace the right way. The people looked to their monarch to lead them to pleasant places and to settle them there under the regulation of royal rule. The English word ‘equity’ derives from the Latin aequitas (‘fairness’), which is closely associated with aequus (‘even’). Both words have their ultimate origin in the Sanskrit éka, or in some even earlier Indo-European root. The Sanskrit éka means ‘one’ – equity and equality can therefore claim an ancient primacy.90 Equality is level ground (we still use the metaphor of the ‘level playing field’ to denote simple equality) and equity in its most primitive conception was the process by which ground was levelled and made fit for society to build upon. The connection between equality, equity and level ground appears in the languages of numerous ancient civilisations. In Hebrew, for instance, justice is associated with the cognate words for level ground and uprightness – miyšor and meyšar – which derive from the adjective yašar (or yosher). Yašar connotes a pleasing sense of straight justice that is closely correspondent to the western European language set for the idea of rectitude. English words belonging to that set include ‘right’, ‘upright’, ‘righteous’, ‘rule’, ‘ruler’, ‘royal’, ‘regular’ and so forth. The Christian Bible translators attempted to capture the Hebrew idea of level justice in the English translation, so we find in the Psalms that God will ‘establish equity’91 and ‘judge 89

‘Law of Nature and Equity’ ch 3 in Ancient Law, above n 1 at 34. Equity retains a subliminal primacy in the modern Anglophone world. The standard western computer keyboard starts with letters (Q-W-E-R-T-Y) which are closely consonant with the sound of equity, and the letters E-Q-U-I-T-Y all appear in the first line. It is a pleasant coincidence that equity, which moves stereotypes, should have this subliminal connection with the mechanics of moveable type. 91 Psalm 99:4. 90

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Figuring Equity with equity’.92 The original concept of equity as levelling justice was idealistic. In the Jewish conception the unevenness of nature was committed to God as the great leveller. The equity we are looking for is an equity which a human judge can strive for despite the contingent and changeable contours of nature. Judaism has a version of this which is called lifnim mishurat hadin (‘beyond the letter of the law’). Kirschenbaum explains that this goes ‘beyond the equity implied in the term yosher’.93 It may go too far for a secular system to follow, since, as Kirschenbaum observes, ‘Lifnim Meshurat Hadin occasionally suggests a moral imperative lacking in the English legal idea of “equity”’,94 The challenge, as we saw in chapter three, is to enable judges to venture beyond law without straying beyond equity. That middle ground is a hard place to find, but to strive for it is the essence of the equitable enterprise. In an article on ‘The Place of Storytelling in Legal Reasoning’ Stefan H Krieger discusses Abraham Joshua Heschel’s Heavenly Torah in which Rabbi Herschel strives to find the story of justice beyond the mainstream of Jewish law. It is a striving we will recognise in our own search for equity beyond the mainstream of secular law. Rabbi Herschel asks: Does the Torah contain but one mode of thought, the legal mode? Is there no role for the mode of mercy, that which commands action beyond the legal boundary? Moreover, does the Torah give us no life values other than those of ‘kosher’ and ‘nonkosher’? Do we need to take into account the values of pleasantness and righteousness? If . . . a person may be a ‘scoundrel within the bounds of the Torah’, it is implied that there is another path, beyond the line of Halakhah.95

We saw in chapter one that equity will not destroy the stone tablet of the law, but will turn it. There is something of this equity at work in the music by which Amphion charmed the stones to build the walls of Thebes. As Horace recounts it: Dictus et Amphion, Thebanae conditor arcis, Saxa movere sono testudinis, et prece blanda Ducere quo vellet. Fuit haec sapientia quondam, Publica privatis secernere, sacra profanis…leges incidere ligno. [Amphion too, the builder of the Theban wall, was said to give the stones motion with the sound of his lyre, and to lead them – whithersoever he would, by engaging persuasion. This was deemed

92

Psalm 96:10; Psalm 98:9. A Kirschenbaum, ‘Equity in Jewish Law (Beyond Equity: Halakhic Aspirationism in Jewish Civil Law’) Library of Jewish Law and Ethics vol XVIII (New Jersey, Hoboken, 1991) 211. See also, JA Diamond, ‘Talmudic Jurisprudence, Equity and the Concept of Lifnim Meshurat Hadin’ (1979) 17 Osgoode Hall Law Journal 616–31 and B Weinstein, ‘Justice and Mercy—Law and Equity’ (1984) 28 NewYork University Law Review 817, 818–19. (‘Yosher’, as Kirschenbaum uses it, is cognate with yašar.) 94 Kirschenbaum, ibid at 195. 95 AJ Heschel, Heavenly Torah (G Tucker with L Levin (eds and trans, 2005) 782; cited in SH Krieger, ‘The Place of Storytelling in Legal Reasoning: Abraham Joshua Heschel’s Torah Min Hashamayim’ (2007) Hofstra University Legal Studies Research Paper No 07–26. (‘Halakhah’ connotes the path set out by Jewish religious law.) 93

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Metaphors of Equity wisdom of yore, to distinguish the public from private weal, things sacred from things profane…to engrave laws on tables of wood.]96

Civilisations cannot be built mechanistically – there must be art as well as science. Where the stones of law are stubborn we must turn to the art of equity. If law is the mason’s art of producing rectilinear stones from the bedrock of nature, equity is the sculptor’s art of revealing the human form from within the rectilinear stone. As the great American jurist, Judge Learned Hand, once said: ‘the work of a judge is an art…[i]t is what a poet does, it is what a sculptor does’.97 The higher and weightier the edifice of the law, the harder it is for the light to shine through. The architects of medieval cathedrals encountered the irony that a cathedral built along rectilinear lines to a great height required such thick walls and pillars to support it that the light was blocked out – thus the physical form of the building came to obscure a substantial symbol (and sense) of the spiritual enterprise. Medieval architects found a solution in the ‘flying buttress’ – the prop of stone that pushes against the wall of the cathedral from the outside and, by opposing, supports the whole structure. The flying buttress enabled thinner walls and wider windows and better illumination. Juridical equity is like a flying buttress to the edifice of the law: it is law, and therefore has a quality of stone, but it is outside the main edifice of the law and in that sense exists beyond the law while maintaining contact with it – like a tamed bird released from its cage it flies but is not fully free. The buttress supports the edifice through constructive opposition and the overall outcome is to present the law in a better light. William West wrote that ‘The formall cause of Equity is the matching and levelling of facts falling out, and the circumstances thereof, with the rules of the Law, as buildings are framed to carpenters lines and squares’.98 A ‘fact falling out’ is, literally, an accident (Latin: ad cedo). West is saying that judges are called upon to make the accidental diversity of life conform to the right angles of the law. This is indeed one way to depict equity’s endeavour to reduce the gap between the circumstances of life and the structures of law, but it is a rather idealistic depiction. It assumes that there is such a thing as a right law to which the uneven contours of life can be accommodated. It is, in short, typical of early modern ‘natural law’ idealism. West confirms a little later on, that this is precisely what he has in mind: Not unfitly is Equity termed the rule of manners: for as by a rule the faults of a building are so discovered, so doth equity judge aright, both of the written law, and also of all

96 Horace, De Arte Poetica 391–99 (trans C Smart) The Works of Horace vol II (Edinburgh, Stirling & Slade, 1819) 288–89. 97 H Shanks (ed), The Art and Craft of Judging: The Decisions of Judge Learned Hand (New York, Macmillan, 1968) xiii. 98 The Second Part of Symboleography, above n 11 at 175, section 7.

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Figuring Equity mens actions and behaviours: and therefore such as are ministers of Justice, apply and frame their judgments, after the square and rule of good and legal, that is to say, of God’s Law, and the Lawes of Nature.99

West’s depiction of equity as an enterprise which seeks conformity to a naturally occurring rule, a rule which only the judge can see, runs the risk of turning equity into oppressor. It is a maxim that equity relieves against accidents, but there will be little relief if the response to accidents is to replace a rigid rule which we can see with an equally rigid rule that is invisible. ‘I put my twelve-inch rule in my pocket to measure all the world by’, said Kipling of his travels,100 and this is pretty much what West’s natural law idealism requires of a judge. The problem is that when we set out to measure the world in feet, we become like Procrustes who chopped the feet off travellers, or stretched them, to make them fit his bed.101 There is an ironic disjuncture between two beliefs which a natural law jurist in West’s mould must hold simultaneously – on the one hand there is the belief that nature contains an ideal law, and on the other there is the belief that nature is flawed and must be made to conform to an invisible ideal. Some ‘natural lawyers’ bridge this gap by explaining that an ideal law of nature has been posited by God, and that sinful nature has fallen short of this ideal. The disjuncture then becomes a perfectly logical gap between the law of God and the law of man, but such a gap cannot be bridged by secular courts. Aristotle proposes a more pragmatic solution. He accepts that the fault lies with the unevenness of nature rather than with rigidity of the law, but he proposes that a human arbitrator should attempt the practical task of bending the law to conform to nature rather than attempt the impossible of bending nature to conform to an ideal of law. Aristotle’s metaphor of the measuring rule made of lead has endured because it is located in the primal heartland of legal imagery – the image set of architectural evenness. The rule of lead explains how equity corresponds to law, by taking the classic image of legal order – the straight line, the even edge, the measuring rule – and bending it a little. No solitary metaphor is perfect, and a slight weakness in Aristotle’s otherwise superlative metaphor is that there is virtually no limit to the pliability of a leaden rule. It cannot be broken, but it can be twisted out of shape; it can even be wrung and twisted and therefore be wrong and tortious. The equity revealed by the practice of English chancery is, as we saw in the previous chapter, an equity that complies with two demands. The first demand is that equity should be more flexible than the rigid rules of the law; the second demand is that equity should operate within appropriate bounds – it 99

Ibid at section 9. JR Kipling, From Sea to Sea (1889) No IV. 101 No doubt such symbolism can be found in most cultures. There is, for instance, a West African folk tale in which ‘Anansi the Spider’ tricks a snake into stretching himself along the length of a bamboo stick in an attempt to ‘measure up’. Meanwhile the spider binds the snake to the stick with silk strands of web. It seems to me that this produces an impressive image of the way in which lawyers bind the powerful to the law by threads of fine reasoning. I am grateful to Peter Carter, a student in my Law and Literature class for bringing this tale to my attention. 100

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Metaphors of Equity must not become so flexible that it becomes wrong. It is to the problem of excessive pliability that John Selden addressed his famous critique of equity – that it is ‘a Roguish Thing’ which varies according to the length of the chancellor’s foot. This is a pleasant play on the ‘foot’ in the sense of a fixed twelve-inch unit of measurement, but it is a poor argument. Selden was writing here ‘with more pleasantry than truth’.102 If equity really did vary like the chancellor’s foot it would be the most constant and invariable aspect of all law – practically unchanging except (in Selden’s own lifetime) on average twice a decade.103

The River of Justice The poet Samuel Daniel depicted Sir Thomas Egerton (shortly before Egerton became Lord Chancellor Ellesmere) as a narrow isthmus of land between the cruel seas of too much rigour and too much leniency.104 This metaphor, adapted from Lucan,105 powerfully represents the moderation – the via media – that is characteristic of equity, but the metaphor is imperfect in two important respects. The first is that it represents the via media as being elementally distinct from the extremes it negotiates. The second is that it represents equity, or the character of the equitable judge, as the unmoving element. The problem with too much rigour is that it does not move and the problem with too much latitude is that it moves too much. The equitable via media is neither stasis nor storm, but moderate motion. The pliability of Aristotle’s leaden rule contributes a sense of this moderate motion, but the strong and steady flow of a river or stream has provided an even more primal sense of pleasing justice. The leaden rule is superior to the river metaphor in some respects (not least because the rule is pliable in the hands of a human artisan, as equity is pliable in the hands of a judge), but the river explains certain aspects of equity that the leaden rule does not. A river bends as the leaden rule does – working around natural features – but the river has the additional feature of being in constant motion. It is constantly straightening its path and attempting to return to level ground. The levelling of ground and the process of returning to the level – both features of water – are, as we saw in the previous section, primal signs of equity’s moderating tendency towards even justice. 102 W Blackstone, Commentaries on the Laws of England (in four volumes) 1st edn (Oxford, Clarendon Press, 1765–69) book III ch 27 at 432ff. 103 The real point of Selden’s objection was that the chancellor’s idea of equity might vary almost day to day – more like his socks than his feet. 104 Samuel Daniel, To Sir Thomas Egerton, Knight: Lord Keeper of The Great Seale of England (1603) stanza 18. 105 Marcus Annaeus Lucanus, De Bello Civili (book I, lines 99–103). The passage relates how Crassus alone strived to keep Julius Caesar and Pompey from conflict: ‘nam sola future Crassus erat belli medius mora. Qualiter undas qui secat et geminum gracilis mare separat Isthmos nec patitur conferre fretum, si terra recedat, Ionium Aegaeo frangat mare’. In the final scene of Catiline (1611), Ben Jonson emphasises the fury that ensues when ‘two violent Tides Meet, and not yield’ as a result of the breaking of a ‘narrow Neck of Land’ between ‘two mighty Seas’.

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Figuring Equity The whole scheme and cycle of water has from earliest times been conceived in terms of law and order. There may be no more ancient book of the Bible than the the book of Job – and there are few to match it for poetry. Job recounts how God ‘made a decree for the rain and a path for the thunderstorm’ (Job 28:26). Sir Francis Bacon argued that equity sprang from nature like a pure fount of justice and gave rise to the legal systems of the world: [T]here are certain fountains of natural equity from which spring and flow out the infinite variety of laws which individual legal systems have chosen for themselves. And as veins of water acquire diverse flavors and qualities according to the nature of the soil through which they flow and percolate, just so in these legal systems natural equity is tinged and stained by the accidental forms of circumstances, according to the site of territories, the disposition of peoples, and the nature of commonwealths. It is worthwhile to open and draw out the purer fountains of equity, for from them all amendment of laws in any commonwealth must be sought.106

When it comes to explaining the relationship of equity to common law within jurisdictions derived from the English model, the most famous (or infamous) metaphor is the potamic metaphor presented by Professor Ashburner in the first edition of his Principles of Equity.107 His metaphor suggests that ever since the Judicature Acts established the Supreme Court of Judicature to replace the old common law courts and the Court of Chancery, ‘the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters’.108 Ashburner was not the first person to associate equity with a stream that runs with other waters without mixing. Bishop Fulgentius made the association in his Mitologiarum,109 where he offered an interpretation of the Greek myth of Alpheios and Arethousa. The classic retelling of that myth appears in book V of Ovid’s Metamorphoses. Ovid tells how the beautiful nymph Arethusa (Arethousa) came across a river that flowed silently and smoothly, such that ‘You would scarcely have thought that it was moving at all’.110 Hot from the exertions of the day, she stripped naked and swam, but in doing so she stirred Alpheus (Alpheios), the god of that river. The modest nymph withdrew, but Alpheus took on human form and pursued her. After a long chase, the nymph called on Diana to rescue her; and the goddess, moved by her cry, sent a thick cloud to shroud the nymph, but the nymph broke into a cold sweat and drops fell until she turned into a stream. At that point Alpheus ‘recognized the waters that he loved, divested himself of the human shape he had adopted, and resumed his proper form, to 106 Francis Bacon, De Augmentis Scientiarum, 1623 (Aphorism 93). See DR Coquillette, ‘“The Purer Fountains”: Bacon and Legal Education’ in JR Solomon and CG Martin (eds), Francis Bacon and the Refiguring of Early Modern Thought: Essays to Commemorate the Four Hundredth Anniversary of the Advancement of Learning (1605–2005) (Aldershot, Ashgate, 2005) 145–72. De Augmentis Scientiarum (1623) is an expanded version of The Advancement of Learning (1605). 107 W Ashburner, Principles of Equity 1st edn (London, Butterworths, 1902). 108 Ibid at 23. 109 Fabius Planciades Fulgentius, Mitologiarum, book III cap XII (c 500 AD). 110 Ovid, Metamorphoses (trans MM Innes) (London, Penguin, 1955) 131.

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Metaphors of Equity join his waves with hers’.111 But before he could join with her, the mountain opened up and Arethusa fell into its depths and travelled under the earth to the island of Ortygia near Syracuse. Misremembering or misrepresenting the details of Ovid’s account, or recalling a different version of the myth, Bishop Fulgentius writes that: Alpheus is in Greek aletias fos, that is, ‘the light of truth’; while Arethusa is arete isa, that is, ‘the excellence of equity’. For what can the truth love but equity, or the light, but excellence? And it retains its purity when passing through the sea, because clear truth cannot by any intermingling be polluted by the surrounding saltiness of evil ways.112

It turns out that that this interpretation is based on one of the bishop’s distinctive ‘flights of etymological fancy’.113 There is in fact no etymological connection between ‘Arethusa’ and any Greek or Latin notion of equity. (Neither is there any obvious etymological connection between the words ‘aqueous’ and ‘aequus’, however much we might like to find one.) The truth is that Bishop Fulgentius has produced a new version of the myth which is designed to obscure the patently sexual overtones of the original. In Virgil’s brief retelling of the myth in book III of the Aeneid, the hunter and the hunted are finally reconciled and in the end ‘roll in the same sacred bed’.114 Shelley’s version also opts for a romantic or sexual conclusion: ‘Like friends once parted / Grown single-hearted, /They ply their watery tasks’.115 More than half a century before the Judicature Acts 1873–75, this paints a perfect poetic image of the relationship between equity and common law that those statutes brought about. Once parted by jurisdictional barriers, they are now united in a single court – as if by marriage – and yet they retain their distinct individual qualities. The problem with Ashburner’s metaphor of the un-mingling streams is that it does not tell us enough of the story. If it is based on geographical observation, he fails to tell us where he has seen it. If it is based on mythological allegory, he fails to tell us the myth. The metaphor intrigues us because it stimulates the imagination, but ultimately it fails because the imagination has no sense or story to sustain it. Ashburner offered his metaphor in the early years of the postJudicature Acts regime. A full century after the enactment of those statutes, Lord Diplock criticised the metaphor in the House of Lords in the case of United Scientific Holdings Ltd v Burnley Borough Council:116

111

Ibid at 132. R Buxton, The Complete World of Greek Mythology (London, Thames & Hudson, 2004) 225 (translating Fulgentius, Mitologiarum book III cap XII: ‘“Fabula Alphei et Arethusae”’: Alpheus enim Grece quasi aletias fos, id est veritatis lux, Arethusa vero quasi arete isa, id est nobilitas aequitatis. Ergo quid amare poterat veritas nisi aequitatem, quid lux nisi nobilitatem. Ideo et in mari ambulans non miscetur, quia lucida veritas omni malorum morum salsidine circumdata pollui aliqua commixtione non novit.) 113 Buxton ibid. 114 Virgil, The Aeneid book III (trans J Dryden) 115 Percy Bysshe Shelley, Arethusa (1820) stanza V. 116 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904. 112

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Figuring Equity [T]his metaphor has in my view become both mischievous and deceptive… As at the confluence of the Rhone and Soane, it may be possible for a short distance to discern the source from which each part of the combined stream came, but there comes a point at which this ceases to be possible. If Professor Ashburner’s fluvial metaphor is to be retained at all, the waters of the confluent streams of law and equity have surely mingled now.117

Lord Diplock seizes on the formal inadequacy of Ashburner’s metaphor to suggest that the distinction he makes between equity and general law is substantially flawed. Diplock nevertheless leaves open the possibility that a better metaphor might have made for a substantially better argument. In the event, Diplock settled on a metaphor which, compared with Ashburner’s, is less obviously flawed in form but much more seriously flawed in substance. Diplock’s conclusion in the United Scientific Holdings case is that common law and equity were ‘fused’ by the Judicature Acts. Not only as regards their procedural (adjectival) aspects, but as regards their substantive aspects. The metaphor of ‘fusion’ employs the image of metals that are melted together. When we talk of the fusion of two elements we are really talking about their confusion. Fusion has potential to describe the relationship of equity to law, were it not for the fact that it implies that the elements have hardened into an alloy in which we can no longer see the original components. The problem with the ‘fusion fallacy’ (as it has been called)118 is that it would purchase integrity at the cost of rigidity. The law must not pretend to inviolable integrity. It must maintain some distinct element of self-critique and flexibility. Some idea of equity as a fluid influence in the progress of law must be retained. Baker raised the objection that Diplock’s approach ‘risks throwing the law into the melting pot’;119 but I say let the law go into the melting pot provided the law is kept molten and equity keeps stirring. We should be slow to abandon the potamic metaphor, with all that it symbolises regarding the flow of pure justice. When we look closely and critically we find that the metaphor of the river, appropriately extended, is difficult to improve on as an account of the ongoing relationship between the functions of equity and general law. Suppose that equity and the general law are not two distinct rivers, but distinct parts of a single river of justice. The general law is the bed of the river, in places as unyielding as stone and sharp-edged and harmful, but over time softened and levelled by the more fluid processes of equity. Today the river’s general course is set and the waters follow the river bed as equity follows the law. Where the lie of the land causes the river to depart far from its proper course so that the straight flow of justice is interrupted, equity corrects it as far as it can. Equity does not

117 Ibid at 924–25 (Lord Diplock). The argument was repeated by Lord Denning MR in Federal Commerce and Navigation Ltd v Molena Alpha Inc [1978] QB 927, 974–75. 118 See R Meagher, W Gummow and J Lehane, Equity Doctrines and Remedies 3rd edn (Sydney, Butterworths, 1992) 46ff. 119 PV Baker, ‘The Future of Equity’ (1977) 93 Law Quarterly Review 529, 536.

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Metaphors of Equity invent an arbitrary course, but goes where the course of the river desires to go – which is by the straightest route possible to level ground. To insist on strict law despite the imperfections which must necessarily arise as it encounters the obstacles of life’s terrain is to deny the flow of equity and is as unnatural as setting the river’s bed in concrete. Such a river bed may be perfectly smooth, un-muddied and unstirred by equity – which for some jurists is the fantasy of how the law should be – but at the cost of rendering the normal course of the law resistant to incremental correction and change (the social grounds on which law is established shift over time). Before the Judicature Acts the flow of equity and law was all churning and no progress, so that ‘diving through law and equity’ was, as Dickens put it, like diving through ‘street mud’ (10). Now that equity has the potential to flow freely across all law in all courts, we have the opportunity to moderate the law in particular cases while prompting reform of its general course. Leaving aside distinctions between legal and equitable aspects of institutional justice, it is clear that the river of justice is a metaphor that appeals directly to judges’ conception of their judicial function. It combines irresistible power with impartial benevolence – carrying life as it does to poor and rich alike. Water also combines power with humility and a sense of equality – however lofty its source, it always flows down and levels out. Rivers can sometimes bring death and destruction, too, but judges imagine themselves in moderate mode; charged with the task of restraining the law where it exceeds its proper bounds. An example is provided by Judge Goldberg in the US case Shanley v Northeast Indiana School District,120 discussed in Michael H Frost’s excellent Introduction to Classical Legal Rhetoric.121 Approving and applying a case called Tinker v Des Moines School District,122 which had supported high school students’ constitutional First Amendment rights to publish their opinions despite opposition from the school’s government,123 Judge Goldberg presented Tinker as a ‘dam’ which restrains the flood of ‘school board absolutism’ without turning the ‘fields of school discipline’ into a desert: Tinker simply irrigates, rather than floods, the fields of school discipline. It sets canals and channels through which school discipline might flow with the least possible damage to the nation’s priceless topsoil of the First Amendment.124

Judge Goldberg is here presenting an excellent picture of equitable moderation of absolute power. Perhaps he was consciously or subconsciously inspired by the biblical book of Amos, with its injunction to ‘let judgment run down as waters’.125 Without wishing to downplay the ‘non-rational or intuitive impact’ of the 120 121 122 123 124 125

Shanley v Northeast Indiana School District 462 F.2d 960 (5th Cir 1972). ‘Greco-Roman Analysis of Metaphoric Reasoning’, above n 59 at 95–96. Tinker v Des Moines School District 393 US 503 (1969). Frost, ‘Greco-Roman Analysis of Metaphoric Reasoning’, above n 61 at 95. Shanley, above n 120 at 978. Amos 5:24 (King James Bible).

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Figuring Equity metaphor, Frost notes a number of reasons for its success. They include the fact that Judge Goldberg has connected Americans’ love of First Amendment freedoms to their love of farming while associating school board absolutism with farmers’ fears of flood.126 The potamic metaphor flows into agricultural metaphors of cultivating crops and keeping livestock and from such origins we derive the images of bridled horses, caged birds and shepherded sheep which are so useful in the elucidation of equity. We noted in chapter one that Dennis R Klinck has revealed, in a cautionary way, how a pastoral set of images informs Lord Denning’s judicial imagination127 (in much the same way that Frost reveals Judge Goldberg’s affinity for the metaphor of irrigation). If we apply the same technique to judges today, we still find pastoral metaphors in use in different ways. We even find, for example, that a little lamb appears to follow one of our leading judges from case to case. One such case is Pennington v Waine.128 There is an established rule which holds that no attempt to dispose of property will be held against the donor until he or she has taken such formal steps to transfer as will take him or her to the point of no return. In Pennington v Waine, an old lady, Mrs Ada Crampton, died before she reached that point and Mary Arden LJ held that in order to enable the disposition to take effect, it would be appropriate to depart from the normal rule. The decision might have been desirable in practice but it was decidedly dubious in theory, not just because it involved, in effect, a judicial transfer of private wealth, but because it was made possible by the fiction that the old lady had been conscience-bound to complete the disposition, so that it would have been wrong of her to change her mind.129 Such theoretical concerns aside, it is clear that her Ladyship considered that she was performing a kindness to the particular parties, and probably she was. Her Ladyship described the general rule as a harsh wind blowing against a ‘shorn lamb’. (An image which appears to derive from two literary sources: Laurence Sterne’s line ‘God tempers the wind, said Maria, to the shorn lamb’130 and Shakespeare’s references in Twelfth Night to ‘the windy side of the law’ and ‘the blow of the law’.)131 Her Ladyship determined to ‘temper the wind’ to the lamb by finding some way to make the gift effective despite the inconvenient timing of Mrs Crampton’s death. In a subsequent case, her Ladyship had the opportunity to depart from another general rule – the strict rule of fiduciary propriety.132 On this occasion her Ladyship again noted that 126

‘Greco-Roman Analysis of Metaphoric Reasoning’, above n 61 at 95. DR Klinck, ‘“This Other Eden”: Lord Denning’s Pastoral Vision’ (1994) 14(1) Oxford Journal of Legal Studies 25–55. Klinck argues that Denning’s judgments betray a potentially problematic Edenic idealism and a certain condescension to the ‘ordinary folk’ he idealises. 128 Pennington v Waine [2002] 1 WLR 2075 (CA). 129 Ibid at 2090–91 paras [63]-[64]. 130 L Sterne, A Sentimental Journey through France and Italy (1767). It is commonly supposed that Sterne’s Maria was quoting the traditional French proverb ‘Dieu mesure la froid à la brébis tondue’ which is listed in H Estienne’s book of proverbs, Les prémices (Paris, 1594). 131 William Shakespeare, Twelfth Night, or What You Will (3.4.123, 116). 132 Considered in ch 3 at 128. 127

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Metaphors of Equity equity ‘tempers the harsh wind to the shorn lamb’, but wisely left such a radical innovation to be taken by the House of Lords, if at all.133

The Scales We have found level ground and we have settled our villages and cities upon it. Next we trade. Trade requires fair dealing and for this we have the scales. The scales or balance has supplied a powerful metaphor for just judgment since ancient times. Its association with mercantile justice was consolidated in the Roman law ritual of mancipatio. The purchase of certain types of property required a public performance under which the purchaser would hold in one hand the thing to be purchased (the ‘thing’ was often a slave) and with their other hand they would strike a copper weight (symbolising the purchase price) against a set of scales held by the libripens in the presence of five adult witnesses.134 Where judgment is a set of scales, litigants can be confident that arguments on both sides will be weighed with precision – even, as Shakespeare wrote, to ‘the estimation of a hair’.135 The image was ubiquitous in early modern England. It was applied to test the legitimacy of the Church of England, with John Udall writing in 1588 that ‘The matter is…cleare unto all that will weight [or weigh’t] in the ballance of equitie’.136 After the Restoration, the king himself was referred to in a sermon as ‘the Publick Ballancer of each Private Interest, with which he is entrusted as the proper guardian of equity and justice’.137 Shakespeare’s treatment of the scales in The Merchant of Venice, where the scales are brought forth to weigh out a just pound of Antonio’s flesh, is therefore a wonderful satire on their popular association with equity. Indeed, with his balance and knife at the ready, Shylock is the perfect parody of another ancient icon of justice – the goddess Justitia with her sword and scales. The very power and ubiquity of the scales as a general metaphor for just judgment should urge caution in its use as a metaphor for equity as a particular aspect of justice. English judges, always rightly suspicious of any solitary and powerful metaphor, have been remarkably critical of the utility of the metaphor of the scales. In Science Research Council v Nassé,138 the celebrated chancery judge Lord Wilberforce, whose great-great-grandfather was the anti-slavery reformer William Wilberforce, was at pains to distinguish the fine art of fairness from the mechanistic process suggested by the scales: 133

Murad v Al-Saraj [2005] EWCA Civ 959, para [82] (CA). WW Buckland, A Manual of Roman Private Law (Cambridge, Cambridge University Press, 1928) 121–22. See Gaius, Institutes, I.119. 135 William Shakespeare, The Merchant of Venice (4.1.337). 136 J Udall, Diotrephes (The state of the Church of Englande laide open in a conference betweene Diotrephes a bishop, Tertullus a papist…etc) (London, R Waldegrave, 1588). 137 J Scott, A Sermon Preached at the Assizes (London, 1686) 13. Quoted in B Shapiro, ‘Political Theology and the Courts: A Survey of Assize Sermons c1600–1688’ (2008) 2 Law and Humanities 1, 9. 138 Science Research Council v Nassé [1980] AC 1028 (HL). 134

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Figuring Equity It is sometimes said that…the court has to perform a balancing process. The metaphor is one well worn in the law, but I doubt if it is more than a rough metaphor. Balancing can only take place between commensurables. But here the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it…This is a more complex process than merely using the scales: it is an exercise in judicial judgment.139

Close engagement with candidate metaphors for equity is most exact in teaching us what equity is when it shows us what equity, by a subtle shade, is not. It reveals that, whereas the exercise of judicial judgment is scientifically less precise than the scales, as an art it is much more precise. Lord Diplock was similarly critical of the related metaphor of ‘equation’: As a metaphor drawn from mathematics its appropriateness to questions involved in cases… in the context of which it was used is flawed by the fact that the essential characteristic of an equation is that there are two sides to it and each side is equal to the other.140

In a case decided seven years before his speech in the Nassé case, Lord Wilberforce employed the metaphor of a ‘critical equation’ to describe the task of deciding between ‘advantage to the plaintiff ’ and ‘disadvantage to the defendant’, but (consistent with the approach he would later take in Nassé) Wilberforce emphasised that in the context of judicial judgment the equation is not a mathematical exercise but one depending on ‘an instinctive process’, adding ‘that is what discretion, in its essence, is’.141 It is because judicial discretion is basically an instinctive process, in the nature of an art, that equity, which relies so much on judicial discretion to bend a rule without breaking it, should be informed by considerations artistic as well as scientific. Equity’s figurative fiction expresses the otherwise ineffable essence of wise judicial judgment, just as parables and proverbs have for centuries constituted the ineffable essence of wise living. It has been said of Lord Wilberforce that he was ‘one of the supreme examples of the advantage in the upper reaches in the law enjoyed by a man who did not take his first degree in the honours school of jurisprudence’.142 His undergraduate degree was in classics, and one wonders if his suspicion of the scales may be traceable to Plato who distinguished the equality of the scales, which he called ‘the rule of measure, weight, and number’143 from [E]quality, of a better and higher kind, which is not so easily recognized. This is the judgment of Zeus; among men it avails but little; that little, however, is the source of the greatest good to individuals and states. For it gives to the greater more, and to the

139

Ibid at 1067. British Airways Board v Laker Airways Ltd [1985] AC 58, 93 (HL). The Atlantic Star [1974] AC 436 at 468 (Lord Wilberforce). 142 The words of Lord Hailsham, quoted in Lord Wilberforce’s obituary in The Guardian newspaper, (19 February 2003). 143 Plato, Laws (trans B Jowett) book I. 140 141

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Metaphors of Equity inferior less and in proportion to the nature of each; and, above all, greater honour always to the greater virtue, and to the less less.144

It is a good thing that Plato’s ‘better and higher’ vision of equality ‘avails but little’ in human society, since no human has the capacity of Zeus to know which of us is ‘greater’ and which of us is ‘inferior’, but it serves to remind us that the equality of the scales is a rough mechanistic justice. We observed earlier that Lord Hoffmann is overly suspicious of metaphors in legal language, but in relation to the metaphor of the scales his suspicion serves him well. Robert Megarry VC once opined that the duty of trustees when choosing how to invest the trust fund is to hold ‘the scales impartially between different classes of beneficiaries’.145 Hoffmann J, as he then was, disagreed: [T]he image of the scales suggests a weighing of known quantities whereas investment decisions are concerned with predictions of the future…there is always a greater or lesser risk that the outcome will deviate from those expectations.146

A more significant objection to the image of the scales is the implication that mechanistic equality means fairness. In a trust established for one beneficiary for life and another in remainder, the two beneficiaries have potentially (and probably) competing interests in the fund and conflicting desires regarding the manner in which the fund should be invested: the beneficiary with the lifetime interest (the ‘tenant for life’) will favour income production, whereas the remainder beneficiary will favour the preservation of capital. In such circumstances the equality of the scales is unlikely to produce a fair outcome. As Hoffmann J said: The trustees have in my judgment a wide discretion. They are for example entitled to take into account the income needs of the tenant for life or the fact that the tenant for life was a person known to the settlor and a primary object of the trust whereas the remainderman is a remoter relative or a stranger . . . It would be an inhuman law which required trustees to adhere to some mechanical rule for preserving the real value of the capital when the tenant for life was the testator’s widow who had fallen upon hard times and the remainderman was young and well off.147

The reference to ‘hard times’ in the final line is highly appropriate. In Dickens’ eponymous novel, Sir Thomas Gradgrind grades every aspect of humanity and grinds it down to its constituent parts. He is depicted wielding two of the great symbols of over-strict judgment: the balance and the rigid rule.

144

Ibid. Compare the ‘Parable of the Talents’ (Matthew 25:14–30). Cowan v Scargill [1985] Ch 270, 286–88. Nestle v National Westminster Bank plc [1988] (1996) 10(4) TLI 112, 115. 147 Nestle v National Westminster ibid. David Hayton points out that the duty to act fairly ‘confers a wide discretion upon trustees enabling them to act partially but honestly’ (D Hayton, ‘English Fiduciary Standards and Trust Law’ (1999) 32 Vanderbilt Journal of Transnational Law 555, 561). 145 146

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Figuring Equity With a rule and a pair of scales, and the multiplication table always in his pocket…ready to weigh and measure any parcel of human nature, and tell you exactly what it comes to. It is a mere question of figures, a case of simple arithmetic.148

A similar figure appears in book V of Edmund Spenser’s Faerie Queene (1590, 1596) in the form of a monstrous giant with a ‘huge great paire of ballance in his hand’ (5.2.30.3) who ‘all things would reduce unto equality’ (5.2.32.9). When the giant is slain by Artegall, the Knight of Justice, it is symbolic of the fact that strict equality is not always just.149 When Artegall learned the art of justice under the tutelage of Astraea, the goddess of justice, she taught him to use the scales of justice but to modify strictness with a measure like Aristotle’s leaden rule: she him taught to weigh both right and wrong In equall ballance with due recompence, And equitie to measure out along, According to the line of conscience, When so it needs with rigeur to dispence. (5.1.7.1–5)

The balance is the most ubiquitous metaphor for equitable justice but when we weigh it we find it wanting.

The Personification of Equity In his fine study of The Culture of Equity in Early Modern England,150 Mark Fortier observes that ‘[d]iscourse on equity has a rich verbal texture that relies, over and over again, on a certain set of tropes: systrophe, metaphor, synathroesmus, antithesis, personification, metonymy’.151 I have argued that one reason for equity’s affinity with poetry is that equity’s function of turning the prosaic abstractions of the general law towards the tangible particularities of everyday life is essentially a poetic function. Another reason for equity’s reliance on figurative language is that the task of maintaining the fixed fictions of abstract law in the face of contingent and constantly changing nature is a task that calls for the sort of imaginative solution that only such fictional modes as the metaphoric and 148 ‘Murdering the innocents’ ch 2 in Charles Dickens, Hard Times (1854) (London, Penguin Popular Classics, 1994) 2. 149 Artegall was based on the privately temperate but politically murderous Arthur, Lord Grey of Wilton, a puritan zealot who was appointed by the Queen to be her Lord Deputy of Ireland. In 1580, Spenser accompanied Grey to Ireland as his private secretary and in that year Grey massacred 600 Italian and Spanish prisoners who had been captured fighting as mercenaries for the Irish. Grey decided to massacre the prisoners because he calculated that his 800 soldiers would not be sufficient to escort 600 prisoners through rebel territory (see P Basseoto, Fighting for God, Queen and Country: Spenser and the Morality of Violence (Milano, Arcipelago Edizioni, 2004) 106–08). The painful resemblance between Grey’s cold calculation and the monstrous giant with the scales seems conveniently to have escaped Spenser’s satirical gaze. On Artegall and the extreme edge of ‘equity’ see G Watt, ‘The Sword of Equity’ in D Carpi (ed), Practising Equity, above n 11 at 99. 150 M Fortier, The Culture of Equity in Early Modern England (Ashgate, Aldershot, 2005). 151 Ibid, ch 4, ‘Poetic Equity’ at 107.

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The Personification of Equity poetic can provide. When it comes to figuring equity, metaphor is truly the ‘figure of figures’. Other tropes and figures play their part, but only personification comes close to metaphor in the breadth and depth of its ability to figure equity. The Oxford English Dictionary defines personification as ‘the embodiment of a quality, idea, or other abstraction, in a real person (or, by extension in a concrete thing)’.152 It shares metaphor’s poetic attribute of rendering abstractions tangible to human sensibility and can therefore be regarded as a subset of metaphor. As metaphor makes an abstraction tangible and poetry gives it a name and a home, so personification gives it a human face – in classical Greek rhetoric the trope equivalent to personification was prosopopoeia (‘to make a face’).153 Our word ‘personification’ derives from ‘persona’, which was Latin for the mask worn by ancient Greek dramatists, so called because the sono (‘sound’) of the actor’s voice came per (‘through’) the mouth aperture. Dickens’ depiction of Mr Tulkinghorn in Bleak House resonates with this original image of the actor’s mask – Tulkinghorn is a ‘talking horn’. He is the mask of legal personality with nothing human behind it. Dickens made powerful use of personification in Bleak House in two opposite ways. One technique was to imbue inanimate buildings with human characteristics. Bleak House itself had its ‘brains blown out’ (8). The staircase windows of the lawyers’ buildings are ‘clogged lamps like the eyes of Equity’ in ‘tiers’154 (32). Dickens’ other technique of personification is to embody abstract vices and virtues in human form. Tulkinghorn is an embodiment of the vice of allconsuming legalism and formality. Esther Summerson is equity personified, as I will show in chapter five. When it comes to elucidating the relationship between law and equity, equity is usually the part that is depicted with human personality (although there are exceptions, as when St German wrote that ‘laws covet to be ruled by equity’).155 Equity tends to be depicted as the personality of one who intervenes or declines to intervene in the normal courses of the law.156 So, for example, in the introduction to his edition of Gilbert on Uses, Edward Sugden writes that ‘equity, who followed most of the rules of the civil law, refused to interfere in favour of an imperfect conveyance’.157 Ultimately, the figure of equity 152 JA Simpson and ESC Weiner, The Oxford English Dictionary 2nd edn (Oxford, Clarendon Press, 1989) 1316. 153 From prosopon (‘face’ or ‘person’) and poiein (‘to make’). 154 See generally, AR Burke, ‘The Strategy and Theme of Urban Observation in Bleak House’(1969) 9(4) Studies in English Literature, 1500–1900 659–76; I Ousby, ‘The Broken Glass: Vision and Comprehension in Bleak House’ (1975) 29(4) Nineteenth-Century Fiction 381–92. 155 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England etc (London, Treverys, 1530) (revised reprint, London, Atkins, 1687) ch 16. 156 A fine example appears in the court morality play Liberality and Prodigality (1567–68, printed 1602), where Virtue commands Equity: ‘Therefore goe you, Equity, examine more diligently / The maner of this outragious robbery’. (L Hutson, Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, Oxford University Press, 2007) 240.) Hutson cites (at 237) another example from King Daryus (1565). See generally, J Wilson McCutchan, ‘Justice and Equity in the English Morality Play’ (1958) 19 Journal of the History of Ideas 405–10. 157 EB Sugden, Gilbert on Uses (London, W Reed, 1811) xlvi (emphasis added).

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Figuring Equity is, and must be, the human figure. We should not concern ourselves with an equity that is not concerned to reveal the human face behind the mask of legal abstraction.

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5 The Equity of Esther Summerson ‘You are different from other children, Esther, because you were not born, like them, in common sinfulness and wrath. You are set apart.’ Charles Dickens, Bleak House

T

HERE ARE TWO main plot strands in Dickens’ Bleak House,1 and both have their source in failures of legal form. The first plot concerns the disputed and dubious last will and testament of a ‘certain Jarndyce’ (there is a two-fold joke here: we never ascertain his first name, and if Jarndyce had been ‘certain’ in the matter of his will, the dispute in Jarndyce and Jarndyce would never have arisen). The second plot concerns the absence of proper legal form at the other end of life – the birth of an illegitimate child. The child would have been Esther Hawdon if she had taken her father’s name and Esther Barbary if she had taken the name of her unmarried mother, but her mother’s sister, to conceal the supposed shame of Esther’s birth, informed the mother that the girl had died at birth and brought her up secretly under the name of Summerson. If the legal system in chancery, exemplified by the dilatory progress of the Jarndyce suit and its attendant lawyers, is the principal villain of Bleak House, then Esther is the first among its heroic characters. Sardonic critique of legal and social injustice supplies the main negative passion of the novel, while Esther’s private capacity to address institutional injustice through her personal care for the young, the old, the sick, the impoverished, the indebted and those troubled in their minds, supplies its main positive passion. It is sometimes objected that in Esther Summerson, Dickens failed to draw a full picture of a woman.2 That objection is unfair,3 but to complain that Esther is not wholly realistic is, in any case, to miss

1 Published by instalments between March 1852 and September 1853. As in previous chapters, references are to the text of the 1971 Penguin edition introduced by J Hillis Miller (Charles Dickens, Bleak House (Harmondsworth, Penguin Books, 1971)). I have adopted Miller’s convention of following each quotation with a reference, in parentheses, to the number of the source chapter. 2 Graham Storey notes that Esther’s detractors include Charlotte Brontë, for whom she was ‘too often weak and twaddling’. (G Storey, Charles Dickens: Bleak House Landmarks of World Literature (Cambridge, Cambridge University Press, 1987) 22). 3 A Zwerdling, ‘Esther Summerson Rehabilitated’ (May 1973) 88(3) PMLA 429–39. (The PMLA is the official journal publication of the Modern Language Association of America.)

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The Equity of Esther Summerson the point. Esther is the novel’s ‘most prominently realized metaphor’,4 to be precise she is intended to personify the character of equity. The novel’s backdrop is the pre-Victorian Court of Chancery5 – a judicial system supposedly dedicated to equitable correction of the common law but portrayed by Dickens as one so mired in professional corruption and procedural delays as to be wholly devoid of justice. We are warned from the outset that if we stay in the Court of Chancery we will ‘look in vain for truth at the bottom of it’ (1) and so the reader is prompted to search elsewhere for true equity, and is invited to find it in Esther. The error of the young man Richard Carstone, who had a significant interest in Jarndyce and Jarndyce, is that he continued to invest his hope and health in the legal process; and so much so that, when the cause eventually died (consumed in legal costs), he died with it. Throughout the novel he clings to the hopeless expectation that the ‘truth and justice’ of Jarndyce and Jarndyce ‘is – is – must be somewhere’ (37) but the tragedy of his error is that he fails to see truth and justice standing before him in the equity of Esther Summerson. It is surprising that so few commentators have identified Esther with equity. Simon Petch is perceptive when he recognises Esther to be one of several female ‘figures of equity’ in Victorian literature;6 although his reading is not without problems, as we will see. Kieran Dolin is also astute to note that Dickens reclaims the ‘ideals of equity’ through Esther Summerson.7 Lord Kames opened the Introduction to his Principles of Equity (1760) with the observation that ‘Equity makes a great figure…tending to maturity, slowly indeed, but constantly; and at what distance of time it shall arrive at perfection, is perhaps not easy to foretell’.8 In this chapter I will argue that the figure of equity arrived at something like perfection in the character of Esther Summerson. It is important to remind ourselves from the outset that the equity with which we are concerned, and with which Esther Summerson is identified, is not a technical juridical equity developed in the Court of Chancery or in any court. The equity of Esther Summerson is an everyday ethic of practical engagement with, and correction of, injustice arising from the rigid perpetuation of rules, formalities and other norms, whether such norms arise in law or elsewhere. Equity of this sort is closely akin to Aristotle’s notion of epieikeia, which does not seek to overthrow general rules but seeks to modify them by resisting their unjust application in individual cases. We have seen (in chapter three especially) that 4

E Hara, ‘Bleak House and the Reign of Metaphor’ (1994) 36 POETICA 7. Holdsworth places the main action of the novel around 1827 (WS Holdsworth, Charles Dickens as a Legal Historian (New Haven, Yale University Press, 1928) 79). 6 S Petch, ‘Identity and Responsibility in Victorian England’ in M Freeman and ADE Lewis (eds), Law and Literature Current Legal Issues vol 2 (Oxford, Oxford University Press, 1999) 397, 413–14; S Petch, ‘Walks of Life: Legal’ in HF Tucker (ed), Blackwell Companion to Victorian Literature and Culture (Oxford, Blackwell, 1999) 155–69, 166. 7 K Dolin, ‘Reformist Critique in the mid-Victorian “legal novel” – Bleak House’ ch 4 in Fiction and the Law: Legal Discourse in Victorian and Modernist Literature (Cambridge, Cambridge University Press, 1999) 84–85, 95. 8 HH Kames, Principles of Equity (Edinburgh, J Bell, 1760). 5

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The Equity of Esther Summerson juridical equity, which provides an institutional response to legal rigidity, still corresponds in some respects to true equity of the Aristotelian sort, but true equity is by no means limited to legal contexts. It is worth reminding ourselves, also, that a defining quality of the equitable ethic is that it works gently through a process of moderation that is anything but revolutionary. Equity does not seek utterly to deconstruct and reject forms and norms, but seeks rather to modify the practical impact of norms and forms, and to do so through processes that are reforming but in the meantime accommodating. Esther, like equity does not overthrow nihilistically, but nuances artfully. This is seen very clearly, in the way that she declines to reject her given name, but prefers to live up to the qualities enshrined in it, as discussed further below. It is likewise seen in Esther’s relationship to the name of Bleak House. She overcomes that name, not by restoring the house to its former name of ‘The Peaks’ (the name it had before old Tom Jarndyce renamed it in homage to the bleakness of chancery), but by so transforming the substance of the life of the novel, that the name loses its sting; indeed the sting is lost so utterly that the house she finally makes her idyllic home is also named ‘Bleak House’ (albeit named for her by John Jarndyce). Through Esther, as through equity, substance triumphs over form not by rejecting form, but by fulfilling it. In his celebrated introduction to the 1971 Penguin edition of Bleak House,9 Miller rightly observes that the novel prompts interpretation and the search for hidden truth. Bleak House is, as he says in the first line, ‘a document about the interpretation of documents’.10 A point at which I disagree with his analysis is where he expresses, and seemingly approves, the Nietzschean notion that the villain of the novel is ‘the act of interpretation itself, the naming which assimilates the particular into a system’.11 Harmful generalisations must be resisted, of course, but if we do not interpret equitably and name humanely, it is certain that inequitable interpretations and inhumane labels will carry the field. To abdicate responsibility to interpret and name will simply let power run unconstrained and unopposed. In any case, Miller’s interpretation requires us, ironically, to adopt too formalistic an interpretation of the text; for he argues that ‘to name someone is to alienate him from himself by making him part of a family’.12 The implied identification of family names with labels commits the very formalistic error which Miller’s objection to assimilative formal categories purports to oppose. It ignores the fact that family names have not been indicative of types since the earliest days of Smiths, Archers, Fletchers and so forth. Nowadays the conferring of family names is closer to acceptance than to alienation, closer to belonging 9 J Hillis Miller, ‘Introduction’ to Charles Dickens, Bleak House (Harmondsworth, Penguin Books, 1971). 10 Ibid at 11. 11 Ibid at 22. The epigraph to the ‘Introduction’ is a quote from an English translation of book III of Nietzsche’s On the Genealogy of Morals (1887), where Nietzsche sees falsehood in the essence of interpreting. 12 Ibid.

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The Equity of Esther Summerson than to ownership. And even if Miller’s objection to family names were wellfounded, Esther would be exempt from it. Summerson is not a family name. It is a name set apart for her. Miller appreciates that each character in Bleak House represents a type, but he does not appreciate Esther’s type. When Skimpole says that Esther is ‘intent upon the perfect working of the whole little orderly system of which [she is] the centre’ (37), Miller calls it a ‘disquieting detail’.13 In other words, he prefers to believe Skimpole’s formal words than to believe the substantial actions of Esther in bringing love to the living, care to the dying and dignity to the dead. On one occasion she even uses her life savings to pay off Skimpole’s debts. It is clear that Dickens’ own sympathies lie more with Esther Summerson than with the scurrilous Skimpole, who (as his name informs us) skims his living off polite society. Harold Skimpole said to the world: ‘Go your several ways in peace! . . . only -let Harold Skimpole live! . . . Mankind will surely not deny to Harold Skimpole what it concedes to the butterflies!’ (6), but Dickens did not let him live. Dickens gives Esther the privilege of telling us that Harold Skimpole died some five years after the case of Jarndyce and Jarndyce had come to an end. Harold Skimpole was made to die as he had lived – gratuitously. Why? Perhaps Dickens considered him a true butterfly; an ephemeral beauty who had no place in the final domestic settlement of Bleak House.14 More probably Dickens was executing a final ethical judgment on Skimpole. This is the man who wanted to turn the poor and sickly orphan boy Jo on to the streets. When, prompted by Esther, John Jarndyce granted the child shelter in his stable loft, Skimpole turned him over to the authorities for a few coins. Dickens could not allow the example of Skimpole to live on to be followed. Esther Summerson is the example that Dickens commends to us.

Esther and Summerson Esther Summerson represents equity in some obvious ways and in other ways more subtle. She obviously represents equity’s concern for substance over form. Her face is disfigured by smallpox and yet her beauty triumphs, not only inwardly, but in the way she appears outwardly to others and to herself. By the end of the novel, her formal appearance is no longer a concern; substance has conquered form.15 Equally apparent is the equity of Esther’s triumph over her 13

Miller above n 9 at 32. It is well known that Skimpole is a realistic sketch of the decidedly undomesticated poet, editor and essayist Leigh Hunt (1784–1859). See Stephen F Fogle’s excellent article, ‘Skimpole Once More’ (1952) 7 (1) Nineteenth-Century Fiction 1–18. In ch 2 we noted that Skimpole described himself as a caged bird (43), which may be an allusion to the fact that Hunt was imprisoned for two years for libelling the Prince Regent. 15 For a reading of Esther’s disfigurement which sees the scarring as essential to an honest reflection of Esther’s self (a self which is consciously not the mirror image of her mother), see H 14

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Esther and Summerson formal illegitimacy. Schor and Stolzenberg observe that the word ‘bastard’ is never mentioned in Bleak House, but when the Lord Chancellor asks if Esther is related to anyone in the cause of Jarndyce and Jarndyce, the lawyer Kenge whispers the answer in the chancellor’s ear: ‘The whisper is the status of the “bastard” in Bleak House, a constantly silent presence before the law, the embodiment of narrative secrecy’.16 Elsewhere Kenge observes that Miss Barbary was Esther’s aunt in fact but not in law’17 (3) and John Jarndyce challenges Woodcourt’s mother (who is unduly proud of her Welsh ancestral lineage and correspondingly disapproving of her son’s interest in Esther) to ‘tell me what is the true legitimacy when you shall have quite made up your mind on that subject’ (64). Why did Esther’s aunt name her Summerson? It seems a peculiarly positive choice by the woman who said it would have been better if Esther had never been born.18 Esther’s aunt was religious, it seems, so perhaps it was a grace-filled gesture, something equivalent to the giving of a new name at baptism or conversion. The aunt’s character will not bear such a benevolent reading. We are forced to conclude that Esther’s aunt did not name her Summerson – Dickens did so directly. After all, he took a special interest in all aspects of her formal representation – even to the extent of casting her in the role of first-person narrator, alongside the novel’s more usual third-person narrator. But why ‘Summerson’? At the start of Shakespeare’s The Life of Henry the Fifth, the Archbishop of Canterbury has the task of establishing the King’s unimpeachable title to the throne of France as a precursor to invasion.19 He proceeds to discredit the so-called ‘salique law’, which the French allege must bar Henry’s claim, since his claim is based on succession through a female. Canterbury’s technique is to lose his audience in a cloud of historical intricacies and legal technicalities, so that his audience quite forgets any need for Henry to prove a positive title to France. The Archbishop emerges from the fog triumphant, with a line that never fails to raise a laugh. The legitimacy of the King’s claim is, he says, ‘as clear as is the summer’s sun’ (1.2.88).20 It was to explore this same dramatic contrast between the documentary obscurity of the law and the clarity of daylight that Dickens created the legal fog of Bleak House and created Esther Summerson to triumph over it. Indeed, it is not at all fanciful to suppose that Dickens had Shakespeare’s line in Michie, ‘“Who is this in Pain?”: Scarring, Disfigurement, and Female Identity in Bleak House and Our Mutual Friend’ (Winter 1989) 22(2) NOVEL: A Forum on Fiction 199–212. 16 HM Schor and NM Stolzenberg, ‘Bastard Daughters and Illegitimate Mothers: Burning Down the Courthouse in Bastard Out of Carolina and Bleak House’ in B Thomas (ed), Law And Literature (2000) 18 Yearbook of Research in English and American Literature 125, fn 18. 17 See further below at n 49. 18 AE Dyson, ‘Esther Better not Born?’ in AE Dyson, The Inimitable Dickens (London, Macmillan’s & St Martin’s Press, 1970). 19 This scene from Henry V has a wider relevance to our study (see ch 2 at 52). 20 All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated.

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The Equity of Esther Summerson mind when he named her. There are a great many Shakespearean allusions in the novel,21 as in Dickens’ works generally.22 The story of Bleak House is the story of the emergence of Esther Summerson, as the sun emerges from the clouds. Born illegitimate to a father who at the start of the novel works as a law writer under the name of ‘Nemo’ (Latin for ‘nobody’) Esther has no name written in law. To begin with, even those closest to her at Bleak House carelessly conspire to suppress her true name. Esther’s narrative reveals that John Jarndyce is one of the worst offenders, even as he confirms that Esther’s destiny is to clear the air: ‘You are clever enough to be the good little woman of our lives here, my dear…the little old woman of the Child’s…Rhyme: ‘Little old woman, and whither so high?’ ‘To sweep the cobwebs out of the sky.’ ‘You will sweep them so neatly out of OUR sky in the course of your housekeeping, Esther, that one of these days we shall have to abandon the growlery and nail up the door.’ ‘This was the beginning of my being called Old Woman, and Little Old Woman, and Cobweb, and Mrs. Shipton, and Mother Hubbard, and Dame Durden, and so many names of that sort that my own name soon became quite lost among them’.23 (8)

Esther, the nameless one, transcends the norm of naming in the novel. She is not held back by the names she had or might have had. Esther makes it her purpose in life to live up to her ‘given’ name of Summerson. She adopts the name as true for herself. The form of her name will finally change through marriage, but we are in no doubt that behind the form she remains Summerson. The most significant moment in Esther’s progress towards her final triumph of substance over form comes at the conclusion of chapter thirty – at about the halfway point of the novel – when she begins to appreciate and acknowledge that the substance of herself is emerging from the obscurity of her nicknames. She is achieving integrity in the name and substance of Summerson: It was only their love for me, I know very well, and it is a long time ago. I must write it even if I rub it out again, because it gives me so much pleasure. They said there could be no east wind where Somebody was; they said that wherever Dame Durden went, there was sunshine and summer air. (30)

The homonymic quality of the triplet ‘somebody’, ‘sunshine’ and ‘summer’ produces a powerful ellipsis of the tri-syllabic name Summerson. Esther is

21

Storey, Charles Dickens: Bleak House, above n 2 at 26. See generally, VL Gager, Shakespeare and Dickens: The Dynamics of Influence (Cambridge, Cambridge University Press, 1996). 23 See generally, W Axton, ‘Esther’s Nicknames: A Study in Relevance’ (1966) 62 The Dickensian 158–63. 22

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Esther and Summerson ‘sunshine and summer’ and ‘Somebody’ at last, but ‘Summerson’ remains hidden for the time being. We sense her presence just beneath the surface of the text, but this is only a glimpse of her momentarily shining through a thin patch in the fog. This short passage supplies reason enough for rejecting the argument, directly opposed to my own, that the novel charts Esther’s loss of self.24 Esther is clearly trying to break through the clouds as Summerson. Dickens tantalises us with this glimpse of Esther at the halfway point of the novel. He supplies a hope of her emergence that remains with us through the dark skies to come, until eventually Esther Summerson emerges fully towards the novel’s end. The naming of Esther Summerson – the woman in search of a name – is unusually significant, even for Dickens for whom no character was casually named.25 As regards ‘Summerson’, it is clear that Dickens intended a contrast with the fog of chancery. As regards ‘Esther’, it is certain that Dickens was contemplating the book of Esther in the Bible. Indeed, it has been argued that the story of Esther Summerson combines features of two biblical books – the book of Esther and the book of Job.26 It is natural that Dickens should have been attracted to these compelling biographies, but we should not overstate parallels between these biblical tales and the story of Esther Summerson. The distinctions between the biblical books and Bleak House are far greater than the similarities between them. It must be admitted, though, that this makes occasional points of similarity seem especially significant – as isolated flowers are most outstanding in a field of plain grass. Significant differences between Esther’s story and the book of Job include the fact that she does not suffer Job’s fall from the greatest imaginable material and emotional wealth and she does not demand justice from God in the way Job did, but there is coincidence between them in such details as her physical affliction, her long suffering and the contentment that she eventually finds. Differences between Esther Summerson’s story and the book of Esther are even more pronounced: the biblical Esther is plucked from obscurity to be made a queen to the mightiest of kings (Xerxes, ‘Ahashverosh’ in Hebrew). Later, having overseen the execution of her enemy Haman, she completes her revenge by persuading the King to hang Haman’s ten sons – hardly behaviour one associates with Esther Summerson. There are, nevertheless, striking (although not exact) similarities between Queen Esther and Miss Summerson: both are orphans, both are taken into the household of an elder guardian, both have secret origins (in Queen Esther’s case her guardian commands her to keep her origins secret,

24

See PR Eldredge, ‘The Lost Self of Esther Summerson’ (1981) 24(2) Literary Review 252–78. On the significance of names and ‘namelessness’ in Bleak House see M Ragussis, ‘The Ghostly Signs of Bleak House’ (December 1979) 34(3) Nineteenth-Century Fiction 253–80. J Hillis Miller wrote that Dickens ‘seems to remain in that realm of fiction where names truly correspond to the essence of what they name’ (‘Introduction’ to Charles Dickens, Bleak House, above n 9 at 11–34, 23). On Dickens’ use of names generally, see KB Harder, ‘Dickens and His Lists of Names’ (1982) 30(1) Names: A Journal of Onomastics 33–41. 26 See JL Larson, ‘The Battle of Biblical Books in Esther’s Narrative’ (September 1983) 38(2) Nineteenth-Century Fiction 131–60, 139. 25

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The Equity of Esther Summerson whereas in Miss Summerson’s case her origins are unknown – if we believe her guardian’s claim to be ignorant of them), each consolidates her position through dutiful attendance to domestic work (in Queen Esther’s case she prepares banquets) and – most important of all – each exerts a moderating influence to deflect the power of legal formalism from causing harm to the innocent. In this regard, Queen Esther and Miss Summerson are united by a quality of mercy, or more properly by an attitude of equity which diverts formal force from its normal course. Queen Esther petitions the King to spare her people, the Jews, who stand to be destroyed according to a law drawn up by her enemy Haman and carelessly ratified by the King. Miss Summerson tries to protect Richard and Ada from the force of chancery and to protect Skimpole from his creditors. Another feature which both women have in common is their courage. Miss Summerson risked disease when she helped Jo and she risked impoverishment when she helped Skimpole by paying off his debts. The Queen risked her life when she approached the King unbidden. It was only because he extended his golden sceptre towards her that she was spared the usual punishment of death. ‘Mercy’, Shakespeare wrote, is ‘above this sceptred sway’,27 but here the King’s mercy was in it. Highly pertinent for present purposes are the processes by which the King ratified the law and responded to Queen Esther’s moderating influence. The order to destroy the Jews had been ratified under the King’s seal and as such could not be rescinded, but the King was able to lessen the evil of the law by passing another law, which he did on Esther’s request. The new law was sealed by her guardian using the King’s own seal. The law permitted the Jews to arm themselves to resist any forces that might come against them under the first law. (The technique of issuing a new law to counter the harm of an earlier law should remind us of the equity of the moderating magic in The Sleeping Beauty.)28 Dickens may have been inspired by Queen Esther’s example to portray in Esther Summerson something like a new law to counter the old law of chancery, and to do it under the subtle disguise of domesticity. Is this a lesson to great women to stay behind great men? Perhaps for the Victorian middle class it was,29 but at the level of symbolism the lesson is not that a man needs a good bride but that the brute power of the legal horse needs a strong hand on the bridle. As Queen Esther moderated the great power of the King’s law by wise influence from within, so Esther Summerson moderates the great power of chancery in like fashion. Queen Esther became a legislator at the end – is there any equivalent role for Esther Summerson? I think there is. She is the summer’s sun, and as such she does more than merely banish darkness: she establishes order. Skimpole got that much right about her. The sun is the great legislator. WH Auden saw it: ‘Law, say

27

William Shakespeare, The Merchant of Venice (4.1.193). See ch 1 at 2. 29 Although not necessarily in a demeaning way (see L Nead, Myths of Sexuality: Representation of Women in Victorian Britain (Oxford, Basil Blackwell, 1988) 33; cited in JM Allan, Charles Dickens’s Bleak House: A Sourcebook (London, Routledge, 2004) 14). 28

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Esther and Summerson the gardeners, is the sun, law is the one all gardeners obey tomorrow, yesterday, today’.30 The famous black basalt stele bearing the Code of Hammurabi is capped by a bas-relief image of the King paying homage to the ancient Babylonian god of justice, Shamash, sitting on his divine throne of judgment. Shamash means ‘sun’. He was understood to pass across the sky in his chariot, casting out darkness, revealing truth, defending the poor and weak. Among his children are Kittum (truth) and Mesharum (justice). Mesharum has been said to denote justice in the sense of equity.31 It has an etymological correspondence with the Hebrew notion of level ground or evenness (miyšor) which we examined in chapter four.32 The sister of the sun god Shamash is Ishtar. There has been some scholarly debate on the question of a possible connection between the names Esther and Ishtar. The book of Esther (2:7) refers to ‘Hadassah, that is Esther’. Hadassah means myrtle tree, so David Testen may be right to argue that ‘Esther’ should be traced back to as (the Semitic root for ‘myrtle’) and dciru – or drau (Old Iranian for ‘tree’).33 On the other hand, there is scriptural evidence that Jews exiled in Babylon, especially those in high-ranking positions, were given local names.34 Esther might have been a compromise between the Hebrew sense of ‘myrtle tree’ and the name of the Babylonian goddess Ishtar – just as the name of Esther’s guardian ‘Mordecai’ appears to be a corruption of the name of the Babylonian God ‘Marduk’.35 It is unlikely that Dickens intended any connection between Esther and Ishtar, however rewarding such a connection proves to be, but it is surely beyond doubt that he had the book of Esther in mind when he chose Miss Summerson’s name. In the next section I will argue that the book of Esther would have held a special appeal for Dickens, not solely because of the story of its heroine, but because of the special canonical status of the biblical book as depicted in another book with which Dickens was intimately familiar – the Book of Common Prayer.

30 WH Auden, ‘Law Like Love’ (1939) in WH Auden, Collected Shorter Poems, 1927–1957 (London, Faber and Faber, 1966). 31 EA Speiser, ‘Authority and Law in Mesopotamia’ (1954) (Suppl) 17 Journal of the American Oriental Society 13 cited in BS Jackson, ‘From Dharma to Law’ (Summer 1975) 23(3) The American Journal of Comparative Law 490–512, 496. 32 At 153. Jackson (ibid) notes that an equivalent to kittum u mesharum has been observed in the Hebrew hayashar v’hatov (Deuteronomy 6:18). 33 D Testen, ‘Semitic Terms for “Myrtle”: A Study in Covert Cognates’ (October 1998) 57(4) Journal of Near Eastern Studies 281–90. See also AS Yahuda, ‘The Meaning of the Name Esther’ (1946) Journal of the Royal Asiatic Society 174–78 (cited in Testen, ibid at 281). 34 In the book of Daniel, Daniel, Hananiah, Mishael and Azariah become respectively Belteshazzar, Shadrach, Meshach and Abednego (1:7). See generally, O Eissfeldt, ‘Renaming in the Old Testament’ in PR Ackroyd and B Lindars (eds), Words and Meanings: Essays presented to D Winton Thomas (Cambridge, Cambridge University Press, 1968). Eissfeldt notes that the power of renaming was always used by a superior in relation to an inferior – sometimes to subjugate, sometimes to honour – and often to indicate (as it did in the case of Esther Summerson) a new destiny. 35 Eissfeldt, ibid at 70. Mishael to Meshach is the most interesting conversion in the book of Daniel (ibid) because like the possible conversion of Hadassah to Esther it indicates an attempt to compromise the Hebrew with the Babylonian.

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The Equity of Esther Summerson

The Fractured Canon and the Equity of the Book of Common Prayer The book of Esther is a book of hiddenness. It is the only book of the Bible in which there is no mention of God. Timothy K Beal asks, ‘What kind of scripture is this? God hiding . . .no sign of religion or religious practice, no sacred space. Mount Sinai lost behind smoke and ashes, the Law of the Father illegible’.36 How like Bleak House this sounds, in which truth and justice, and a father, lie hidden within the fog of law and within the smoke and ashes of Krook’s combustion. Beal goes on to suggest that ‘Esther is present within the biblical canon as a kind of fracture, a fissure in the divinely ordained order’.37 I would suggest that this ‘fracture’ is most apparent in Article VI of the Articles of the Church of England (1562, ratified 1571). Article VI, on the ‘Sufficiency of the Scriptures’, lists the book of Esther with the canonical books of the Bible but lists the rest of the book of Esther (later Greek additions to the Hebrew original) with the non-canonical apocrypha.38 The Articles are included in the Book of Common Prayer (1662) which was still the official prayer book of the Church of England in Dickens’ day. He was thoroughly acquainted with its contents,39 so he would have been aware that ‘Esther’ is the only book which is both within and without the Bible. Did this influence his choice to write Bleak House from two major narrative perspectives – Esther’s narrative and that of the more omniscient objective narrator? Perhaps not, but there is no denying that as the book of Esther provides ‘an interrogation of biblical authority from within’40 which unsettles the formal categories ‘canonical’ and ‘non-canonical’, so Esther Summerson’s narrative provides a comparable internal interrogation of the world of Bleak House which unsettles such formal categories as ‘legitimate’, ‘charitable’, ‘religious’ and ‘attractive’. It is fitting that the equitable modification of received form is alerted to in express terms in the 1662 Book of Common Prayer. The preface reveals that the compilers were very conscious of the equity of their project. Written in 1661, it begins with a sentence which perfectly encapsulates the equitable art of bending established form without breaking it: It hath been the wisdom of the Church of England, ever since the first compiling of her Publick Liturgy, to keep the mean between two extremes, of too much stiffness in refusing , and of too much easiness in admitting any variation from it …

36 TK Beal, The Book of Hiding: Gender, Ethnicity, Annihilation and Esther (London, Routledge, 1997) 118. 37 Beal, ibid at 119. 38 The King James Bible (1611) ended, as does the Hebrew original, at ch 10 verse 3. In the Septuagint, Greek additions are interspersed with the Hebrew, but St Jerome’s ‘Vulgate’ edition removes the Greek additions to the end of the book, where they appear as Esther (10:4–16:24). 39 JL Larson, Dickens and the Broken Scripture (Athens, University of Georgia Press, 1985). 40 Beal, The Book of Hiding, above n 36 at 119.

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The Stereotype of Female Equity The preface goes on to repeat the conservative opinion (frequently voiced by lawyers)41 that change to the received text ought to be resisted for the most part, because change often causes more evil than it cures; but it then states, in equitable mode, that it is nevertheless ‘reasonable’ to make changes and alterations ‘upon weighty and important considerations, according to the various exigency of times and occasions’. The compilers were attempting the supremely difficult task of making formal changes to the liturgy while seeking to maintain respect for the former form. Such a task lies at the heart of Christianity as epitomised in Jesus’ mission of giving a new law by way of fulfilling, not replacing, the old.42 Such a subtle task – the task of conservative progress and respectful revision – is a task requiring equity. It is perhaps the task of equity, for it is necessary to the development and interpretation of all forms of law, including religious law and liturgy. The compilers of the preface appreciate that only equitable judgment can achieve just progress: [W]e are fully persuaded in our judgments (and here we profess it to the world) that the Book [of Common Prayer], as it stood before established by law, doth not contain in it any thing contrary to the Word of God, or to sound Doctrine, or which a godly man may not with a good Conscience use, and submit unto, or which is not fairly defensible against any that shall oppose the same; if it shall be allowed such just and favourable construction as in common equity ought to be allowed to all human Writings, especially such as are set forth by Authority…

The Stereotype of Female Equity When I noted earlier that Simon Petch reads Esther as one of several female ‘figures of equity’ in Victorian literature, I also suggested that his analysis is somewhat problematic. The problematic part is the contrast which he draws between Esther and ‘male’ legal institutions and legal professional culture. Petch is right to observe that the legal profession was homogenously male in its personnel, but the chancery branch in the first half of the nineteenth century was by no means exclusively male-oriented in its practice.43 It is true that the common law protected the husband and it is true that chancery generally followed the common law, but there is also truth in Dicey’s observation that

41

See ch 6 at 211−2. ‘Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfil’ Matthew (5:17) (King James Version). 43 For an argument that the courts of sixteenth century England had the equitable capacity to oppose the common law’s tendency to disable women see C Sale, ‘The “Amending Hand”’ in C Jordan and K Cunningham (eds), The Law in Shakespeare (Basingstoke, Palgrave Macmillan, 2007) 189–207, 204–05. 42

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The Equity of Esther Summerson ‘equity lawyers’ considered the husband to be the ‘enemy’, ‘against whose exorbitant common-law rights the Court of Chancery waged constant war’.44 A wife could sue in her own right in the Court of Chancery and a husband could not plead for his wife unless she was joined in the plea, and yet she could only be sued in that Court if her husband was joined as defendant.45 To further protect the wife’s property interests, chancery invented such doctrines as ‘the wife’s equity to a settlement’,46 the ‘restraint on anticipation’47 and the wife’s ‘separate estate’. The last of these innovations was the most important, not least because it heralded the Married Women’s Property Act 1882. The doctrine of the wife’s ‘separate estate’ recognised the wife’s independent ownership of any property given to a married woman or settled upon her ‘for her separate use’ (described by James LJ as ‘that blessed word and thing’).48 Bleak House provides the example of Lady Dedlock, who has an interest in Jarndyce and Jarndyce which she pursues in her own right – Sir Leicester refers to it as ‘My Lady’s cause’ (2). It is worth noting, incidentally, that Lady Dedlock’s interest in the cause gave her daughter Esther Summerson a remote and indirect interest too, even though she was ‘no party in the suit’49 (5). It is fitting that Esther is at one and the same time an insider and an outsider in the chancery suit – it reminds us again of the ambiguous canonical status of the biblical book of Esther. A more fundamental problem with Petch’s reading is its implications for equity today. The moment one contrasts ‘female’ with ‘legal institution’ one sets oneself the challenge of speaking the virtue of ‘female’ alterity to legal institutions while decrying the vice of female exclusion from them. Even if that challenge can be met, it is nowadays of the greatest practical importance to ensure that equity is conceptualised as an internal influence wherever formal right is turned to abusive might. It was when Queen Esther penetrated the sanctum of King Xerxes unbidden, as if she was the one wielding the sceptre, that she was able to exert her power to moderate. Powerful men must not be encouraged to think that equity is a virtue that should be left to women to fulfil in a place removed from power, and

44 AV Dicey, ‘The Effect of Judge-made Law on Parliamentary Legislation’ in Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century vol II (London, Macmillan, 1919) para [654]. 45 G Spence, The Equitable Jurisdiction of The Court of Chancery (in two volumes) vol I pt II (Philadelphia, Lea and Blanchard, 1846) 597. 46 Barrow v Barrow (1854) 5 De G M & G 782. 47 Pybus v Smith (1791) 3 Bro Ch 340. This was a highly paternalistic measure which prevented a married woman from entering into dealings which might jeopardise future beneficial enjoyment of her separate wealth. 48 Ashworth v Outram (1877) 5 Ch D 923, 941. 49 HM Schor, ‘Bleak House and the Dead Mother’s Property’ ch 4 in Dickens and the Daughter of the House (Cambridge, Cambridge University Press, 1999) 103.

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The Stereotype of Female Equity powerful women must not be encouraged to assume that equity is a virtue which by the mere fact of their gender they have already attained.50 The stereotype of equity as female has a long history in English literature, most of it written by men, with some of the clearest examples appearing when there was a queen – Victoria or Elizabeth I – on the throne. Spenser’s epic tribute to Elizabeth, The Faerie Queene (1590, 1596), provides an example. He notes that the antique world invented Justice as the God Osiris, and in the person of his wife, Isis, ‘cunningly did shade / That part of Justice, which is Equity’ (5.7.3). (It is interesting to observe, in the light of what was said earlier, that Isis is the Egyptian equivalent of the Babylonian Ishtar.) Spenser mirrors this divine ordering of justice in the partnership between Artegall, the Knight of Justice, and his companion Britomart. We are told that Artegall was trained to judge equitably, but whereas his justice is tainted by zeal,51 Britomart’s is not. She is an exemplar of equity, albeit equity in its jurisdictional, chancery sense, rather than equity in its broader connotation as an aspect of character.52 The poem that speaks of ‘Fair Equity, Law’s gentler sister’ is representative of the trite way in which equity’s feminine credentials are taken for granted.53 It might have been inspired by Jeremy Bentham’s not-so-trite diatribe against juridical equity. Bentham wrote: Equity, who having in the beginning been a rib of Law, but since in some dark age plucked from her side, when sleeping, by the hands not so much of God as of enterprizing Judges, now lords it over her parent sister.54

The stereotype depends on sweeping general assumptions about the natures of ‘equity’ and ‘female’. It is objectionable if the female stereotype is inherently unflattering (on the same occasion Bentham referred to chancery equity as ‘that capricious and incomprehensible mistress of our fortunes’);55 and even if equity is always virtuous, it does not follow that to stereotype equity as female is necessarily a good thing. It is equitable to challenge the stereotype of equity as female, just as it is equitable to challenge any routine generalisation. I will begin the challenge by suggesting that Mr George, the former trooper and master of the rifle gallery, may be the most stereotypically masculine man in Dickens’ Bleak 50 In this connection it is interesting to note that ‘the first national organization of women lawyers in American history’ went by the name of the ‘Equity Club’ (see VG Drachman, ‘Women Lawyers and the Quest for Professional Identity in Late Nineteenth-Century America’ (1989–90) 88 Michigan Law Review 2414 at 2415). 51 See further, ch 4 at 166. 52 It has been said that ‘The main relevance of legal “equity” to Spenser’s allegory derives from the historical circumstances of Mary Queen of Scots’ trial in 1586. The principle of equity was invoked twice: first in the trial that took place at Fotheringhay and then in Elizabeth’s action when the court declared Mary guilty’. (R Graziani, ‘Elizabeth at Isis Church’ (1964) 79(4) PMLA 376–89. 53 From the short end sheet poem, ‘Cras Animarum’ which appears in Charles J Darling, Scintillae Juris (London, Stevens and Haynes, 1889). 54 J Bentham, A Fragment on Government (1776) JH Burns and HLA Hart (eds) (Cambridge, Cambridge University Press, 1988) 5–6. 55 Ibid.

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The Equity of Esther Summerson House and yet also one of its most equitable characters. Mr George’s opposition to the legal profession is far more pronounced than Esther’s. We are told that ‘Mr George shook his head in the most emphatic manner. “I thank you all the same, sir, but – no lawyer!”…“I don’t take kindly to the breed”’ (52). If alienation from the legal profession were equitable and female, this would make Mr George more equitable and female than Esther, but there is more to being equitable and female than this. What qualifies Mr George to be called equitable is that he resists force and the abuse of power. He resists it in Mr Smallweed when he bullies Mrs Smallweed; he resists it in himself when he is minded to throttle the life out of his persecutor Mr Smallweed and he resists the temptation to resort to one of his rifles to remove Smallweed and Tulkinghorn when they persecute him. When equity manifests itself in the restraint of power it acts somewhat as mercy does and has something of that quality which makes mercy ‘mightiest in the mighty’.56 The very fact that Mr George makes a ‘special contrast…to the Smallweed family’ (21) who routinely employ their legal rights to abuse others, is further evidence of the equitable character of Mr George. In Aristotelian terms, Mr Smallweed is a stickler for his legal rights (akribodikaios) and this makes Mr George, in contrast, a figure of equity (epieikeia). Dickens further endorses the equitable character of Mr George by establishing a contrast between the rifle master and another stickler for legal rights – Sir Leicester Dedlock. Sir Leicester is not abusive in the way that the Smallweeds are, but, like them, he illustrates the character of akribodikaios which is the character of one who is strictly insistent on legal entitlement. Sir Leicester is a man of conscience, but it is ‘strict’ conscience – he ‘would on the whole admit nature to be a good idea’, but ideally it would be ‘enclosed with a park-fence’ (2). He is ‘honourable’, ‘truthful’ and ‘high-spirited’, but also ‘obstinate’, ‘intensely prejudiced’ and ‘perfectly unreasonable’. His unreasonableness is shown most clearly in his dispute with Lawrence Boythorn over a slither of disputed land lying between their territories. With regard to that, Sir Leicester announces to Tulkinghorn: ‘I cannot readily conceive how ANY right of mine can be a minor point’ (12). Boythorn considers Sir Leicester Dedlock to be ‘Sir Lucifer…locked’ (9) – a play on his name which neatly encapsulates Dickens’ two favourite metaphors for chancery: hell and the prison. In summary, Mr George is equitable not only by virtue of his own character, but because of the special contrast that is drawn between Mr George and those whose character is akribodikaios. All this is by way of explaining that when I say that Esther Summerson is the most fully realised and finely nuanced personification of equity in English literature, I do not say so because she is female. After all, she is a man’s idea of a woman and could even be said to be Dickens in disguise.57 Judith Wilt observes

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William Shakespeare, The Merchant of Venice (4.1.188). Timothy Peltason suggests that no characters in the novel more closely resemble their creator than Esther and Mr Bucket (T Peltason, ‘Esther’s Will’ (1992) 59(3) English Literary History 671–91, 690). See also, CA Senf, ‘Bleak House: Esther, and the Androgynous Mind’ (1983) 64 Victorian 57

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Motive Moderation that Dickens ‘made himself a woman’ in the form of Esther Summerson. She argues that as a result of this imaginative gender reassignment he ‘found himself committed to the wider anxieties of the self-Other relationship’ that ‘are the female’s lot in the world’.58 There is no doubt much truth in this, just as there is truth in the observation that Dickens tended to see ‘other-directed’ virtues as essential to womanly identity,59 but Dickens did not passively ‘find himself ’ committed to the anxieties of the ‘self-Other relationship’; he actively committed himself, by an effort of will and imagination, to seeing the world through another’s eyes. This quality of imaginative commitment is itself a literary lesson on how to engage equitably with the world. Timothy Peltason seems sensible to this when he says that Esther ‘represents the imagination as a power of sympathy’.60 He adds that Esther also represents imagination as ‘a restless energy born of unappeasable need’.61 He considers this aspect of her character to be somewhat embarrassing. I do not agree. Justice is an unappeasable need and we should be as restless and energetic as Esther in its pursuit. With this dynamic sense of justice in mind, I will now argue that Esther’s equity is a motive and emotive equity – an equity stirring.

Motive Moderation The quality of motive moderation is the defining quality of equity as I conceive it. Equity is not still, it is in constant motion and its active influence is always directed to counter extremism. This makes it a quality for our time. Like a pendulum or the swinging arm of a metronome, equity is always moving about a mean – never swinging too far to the left or the right. Esther Summerson is the paradigm figure of motive moderation. She moves those who are settled, including those who have settled for a legal or formalistic conception of life; but she holds those who would run from reality or responsibility and those who are forced to move on. She moderates the counter-extremes of stasis and displacement through who she is and what she does – her character and her very existence stir the settled and settle those who are stirred. Even the name Esther Newsletter 21–27; A Sadrin, ‘Charlotte Dickens: The Female Narrator of Bleak House’ (1992) 9 Dickens Quarterly 47–57. Mr George is just one of many male literary characters who might be read as exemplars of equity. Daniel Deronda is certainly a candidate. As well as being illegitimate and ignorant of his true origins, he is alienated from his projected legal career and moved by equitable impulses. Significantly, he might also be considered an embodied equitable challenge to the strictures of external form, in so far as he can be considered a female author disguised as a man in much the same way that Esther Summerson is a male author disguised as a woman. 58 J Wilt, ‘Confusion and Consciousness in Dickens’s Esther’ (1977) 32(3) Nineteenth-Century Fiction 285–309, 285. 59 P Ingham, Dickens, Women and Language (New York, London and Sydney, Harvester Wheatsheaf, 1992) 114. 60 Peltason, above n 57 at 690. 61 Ibid.

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The Equity of Esther Summerson maintains a tension between the static ‘estate’ and the active ‘stir’. As the name suggests, she is in a state of constant motion. Esther peregrinates as equity does: she ‘must “trot” around, make friends with an astonishing number of people, and be in surprising places, to keep us informed’.62 Her dynamic blend of stirring and stability is paralleled to the equitable dimension of law. On the first page of Roscoe Pound’s lectures on Interpretations of Legal History63 he observes that ‘Law must be stable and yet it cannot stand still’:64 [T]he problem of compromise between the need of stability and the need of change becomes in one aspect a problem of adjustment between rule and discretion, between administering justice according to settled rule, or at most by rigid deduction from narrowly fixed premises, and administration of justice according to the more or less trained intuition of experienced magistrates.65

He is quite right, of course, but when he adds that ‘[i]n one way or another almost all of the vexed questions of the science of law prove to be phases of the same problem’, he defaults to the paradigm of empirical ‘science’ so popular with jurists at the time, at precisely the moment when he ought to have looked to the paradigm of art. It is when legal science cannot predict the outcome of the compromise that it is most important to cultivate an appropriate art of judgment – one that does not demand strict adherence to norms established by precedent and the strict letter of rules. Pound’s reference to the ‘more or less trained intuition’ of judges is a brave attempt to explain what is essentially an art in terms that are empirically scientific. It would have been better to acknowledge that those features of judgment which appear to be problems from an empirical point of view present themselves as opportunities from the perspective of art. Only an artistic perspective can elucidate the defining paradox of equity, which is to move while maintaining stability – a claim which finds some support in Shelley’s observation that poets are ‘the influence which is moved not, but moves’.66 Before I demonstrate the centrality of motive moderation to the life of Esther Summerson, I will show that the twinned concepts of ‘stasis’ and ‘standing’ have combined to create an immobile core of legal language. Steven L Winter suggests that the legal metaphor of standing might have its origins in the physical act of standing near the seat of judgment and that the related idea of status indicates a

62 M Moseley, ‘The Ontology of Esther’s Narrative in Bleak House’ (May 1985) 50(2) South Atlantic Review 35–46, 36. 63 R Pound, Interpretations of Legal History (New York, Macmillan, 1923). 64 Ibid. For a view of Shakespeare’s Romeo and Juliet through the lens of Pound’s paradox, see D Carpi, ‘Law and its Subversion in Romeo and Juliet’ in P Raffield and G Watt (eds), Shakespeare and the Law (Oxford, Hart Publishing, 2008) 119–33, 129. 65 Pound above n 63. 66 Percy Bysshe Shelley, A Defence of Poetry (1821, published 1840). This phrase immediately precedes the famous final line of the defence: ‘the influence which is moved not, but moves. Poets are the unacknowledged legislators of the world’.

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Motive Moderation physical state of standing with proximity to the king.67 It is certain that legal language would not exist as we know it if embedded metaphors of stasis and standing were removed. In the following paragraph I have underlined a number of legally significant words which are ultimately derived from the Proto-Indo European base sta (‘to stand’):68 Cases and statutes are the two key components of the corpus of common law, and both are underpinned by the constitutional authority of the State. One may initiate litigation provided that one has standing to appear. In court, one will present one’s case as statements (made on a form drawn up by the law stationer). Having heard the case stated, the judge decides the matter bearing in mind the need to ‘stand by’ precedents established in the past, in accordance with the doctrine of ‘stare decisis’ (‘stand by the thing decided’). Precedents may be departed from in certain circumstances, one of which is where the precedent can be shown to have become obsolete because it was decided rebus sic stantibus (‘as matters then stood’). Having decided the case, the judge may stay execution. One of the key causes of chancery business is the legal estate (freehold or lease), and it is significant how closely social status (station in life) is aligned with a great landed estate (Sir Leicester Dedlock, in his stately home of Chesney Wold, epitomises this connection in Bleak House). This is all supposing that the matter is a civil matter. If it is a criminal matter it will all start at the police station with a police constable.

The preceding sequence is deliberately light hearted, but it makes the point that there is an inertia or stubbornness inherent in legal language even before we decide how we intend to use it. It must be extreme, or at least immoderate, to compact the state of this already too solid law by standing insistently on one’s rights. Standing on one’s rights amounts to standing on status conferred by the state – standing on standing on standing. Thus standing is turned to stomping. There is nothing wrong with enforcing a legal right, but obstinately to insist on the enforcement of one’s legal rights regardless of harmful consequences and in the face of attempts at reasonable compromise is indicative of an inequitable character. Aristotle’s word for the inequitable character – the stickler for rights – tells us that the problem is not the strictness of the law per se, but the adoption of a strict ethic with regard to the law. His word is akribodikaios. The person who is dikaios acts rightly by the law. The person who is akribeias is exact and precise. The fault occurs when these attributes, neither one wrong in itself, are combined to produce the extremity of the person who is ‘akribo’ dikaios – the person who enforces rights that are strict strictly. Language itself, which wants moderate harmony, is uncomfortable with the coupling ‘strict strictly’ and the extremity it implies. As Christopher St German observed: ‘Extreme righteousness is extreme

67 SL Winter, ‘The Metaphor of Standing and the Problem of Self-Governance’ (July 1988) 40(6) Stanford Law Review 1371–1516, 1383, fn 63. 68 Compare the Latin verb stare ‘to stand’.

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The Equity of Esther Summerson wrong’.69 I would put it this way: whereas two wrongs do not make a right, to be too right makes a wrong. Yet even akribodikaios is not, without more, inequitable in the juridical sense. As we saw in chapter four, to call for the equitable intervention of the English Court of Chancery and its successor courts, a right must be insisted on, however strictly, in circumstances which make it ‘unconscionable’ to insist on it. When I say that equity’s intervention depends on the ‘circumstances’, I mean that equity does not concern itself solely with the core stance taken by the general law, but looks to surrounding factors which might show that in the relevant context strict insistence on the law is being abused. Equity’s attention to surrounding matters is not alien to the juridical process. The very word ‘circumstance’ is centred on the core legal language set of ‘standing’ – it denotes factors which surround or encircle the core legal issue. The Dedlocks represent the antithesis of movement and change. Sir Leicester Dedlock is the most status-bound character in the novel. There is, as I have said, a sense of stasis in the name Esther – indeed the Old French verb ester means ‘to stand’70 – but she has more of a sense of ‘stirring’ about her than ‘standing’. Sir Leicester Dedlock, who also has ‘ester’ in his name is decidedly the stubborn sort who stands on his rights. Indeed, we are informed that, ‘according to Sir Leicester’s rapid logic, the first station in which [people] happen to find themselves’ is ‘the station unto which they are called – necessarily and for ever’ (28). His status and his station in life are almost everything to him. The only thing that he loves more than his standing in life and his standing on right, is his wife. At the start of the novel, Lady Dedlock, whose status is established (another ‘sta’ word) solely by wedlock to Dedlock, is the most static person in it. Her passion is all in the past. Everything that once moved her has been laid to rest. Lady Dedlock is so unmoving, she tends even to sit rather than to stand. She has settled into stillness; not in the peaceful way that one settles out of court, but in the resigned way that the dissatisfied settle for the life they have. She is frozen in the outward form of fashion – like her pinup which adorns the bedroom wall of Guppy’s friend Mr Tony Weevle (55). Dickens tells us that ‘having conquered HER world’ (of fashion) she ‘fell not into the melting, but rather into the freezing, mood. An exhausted composure, a worn-out placidity, an equanimity of fatigue not to be ruffled by interest or satisfaction’ (2). In another place, we are told that she ‘stands absorbed in the same frozen way’ (41). She is utterly unmoved and unmoving. Lady Dedlock is dead still, and her walking is all wandering without any way out. All this changes when she discovers that the man she once loved so passionately is close at hand. Later she is moved outright when she discovers that their child, Esther, whom she believed to have been stillborn, still lives. As he so often

69 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England (1530) ch 16. Echoing the maxim Summum jus summa injuria and the Old Testament saying: ‘Be not righteous over much; neither make thyself over wise: why shouldest thou destroy thyself?’ Ecclesiastes (7:16) (King James Version). 70 Compare the modern French verb être (‘to be’).

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Motive Moderation does in this prototype of the detective novel, Dickens provides a clue to this outcome early on. When we first meet ‘My Lady Dedlock (who is childless)’ she is ‘looking out in the early twilight from her boudoir at a keeper’s lodge and seeing the light of a fire upon the latticed panes, and smoke rising from the chimney, and a child, chased by a woman, running out into the rain to meet the shining figure of a wrapped-up man coming through the gate’ (2). Note how the triplicate ‘ch’ sound in ‘chimney’, ‘child’ and ‘chased’ combines with the imagery of ‘chimney’, ‘smoke’ and ‘fire’ to create the subliminal sense of a speeding steam train.71 Lady Dedlock is sitting in the station watching as the world passes by. The sight of the family reunion puts her ‘quite out of temper’. Little wonder. This is the scene of a life she believes she has lost, but which she is about to discover in tragic manner. Lady Dedlock will shortly run to her lover, but by then he will be already dead – ‘wrapped up’ on earth, and ‘shining’ beyond. It is in the rain that this woman will meet her child for the first time: Lady Dedlock and Esther both happen to shelter from a storm in the same lodge at the same time – it is significant that ‘lattice-windows’, so heavily laden with chancery symbolism,72 appear again in that scene and are said to be ‘all thrown open’. When Lady Dedlock and Esther meet on a later occasion, Esther initially imagines she has seen a female shape haunting the Ghost walk. Esther narrates that Lady Dedlock came towards her ‘with a much quicker step, I observed to my surprise, than was usual with her’ (36). In a reversal of the biology of the womb, Esther has quickened her mother. The corresponding effect on Esther of her mother ‘being unexpectedly so near (she was almost within speaking distance before I knew her)’ is to render Esther ‘motionless’. Thus the ever-active Esther is momentarily cast back into the story of her stillbirth. The pace of the novel accelerates in chapter fifty-five, ‘Flight’, when the mother flees from Chesney Wold in search of her man, Captain Hawdon, whose final resting place lies ‘through the gate’ of the pauper’s graveyard. We have only just learned Lady Dedlock’s first name (Honoria) in chapter fifty-four. The novel is a mother’s journey of discovery as it is a daughter’s. Esther transforms Lady Dedlock from the novel’s most static and formal character into its most moved and among its most moving. Lady Dedlock swaps her fashionable clothes for rags and follows the progress of the ever-moving crossing-sweeper Jo, until she comes, as he came, to a full stop. Esther also moves those who conceive the world in terms of law. Her effect on the lawyer’s clerk William Guppy is sudden and surprising and leaves us in no doubt that Dickens was overtly conscious of the symbolic power of Esther’s motive influence on the law. Guppy had set aside his own language for that of the law, but Esther moves him to some sort of passion (albeit one that leads him to propose marriage to Esther with full legal solemnity). The maxim has it that 71 Dickens wrote Bleak House in a period of significant progress in the development of railways and high-speed steam locomotives. 72 As we discovered in ch 2.

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The Equity of Esther Summerson equity follows the law, but he follows her as Alpheus pursued Arethusa73 – like Alpheus he loses sight of her momentarily when her external form is changed and like Alpheus he takes up the pursuit again but ultimately fails to capture her. Yet as Esther stirs her mother and stirs Guppy, so she has the opposite effect of stilling those who are unsettled – including those, such as Jo, John Jarndyce and even Harold Skimpole – who are unsettled by the law. There is nothing simplistic about the equity of Esther Summerson. Just as her name maintains a tension between the active ‘stir’ and the static ‘estate’, so she stirs the still and stills the swift. To repeat a metaphor which we first encountered in the opening chapter of this book, Esther’s impact varies according to context – as the shadows of the sun vary according to the ground – but her equitable character is constant. Esther apparently has very little reforming effect on Skimpole, but she is at least unceasing in her efforts. When she uses her entire life savings to pay off the bailiff who has come to remove Skimpole, her unchanging goodness leaves the irredeemable Skimpole unchanged, but she has been true to herself. She has also, in a small way, stepped in to resist the law. Esther’s intervention is most effective when she takes in the poor boy Jo, who has been chased from pillar to post by various officers of the law. The constable moves him and the detective Bucket and the lawyer Tulkinghorn pursue and displace him. Even the coroner tells the assembled dignitaries and onlookers to ‘Put the boy aside’ when Jo attempts to give evidence in the coroner’s court regarding the dead man, his friend, ‘Nemo’. The worst offender, for sheer perversity, is the ‘Reverend’ Mr Chadband (not a ‘right reverend’, but an exemplar of what Dickens calls the ‘wrong reverends’ (52)), who represents the sort of legalistic and formalised religion that Dickens (who called himself a gospel-Christian) detested. Chadband lays his hand on Jo, not to help him but to hold him while he ‘considers where to station him’ (25). The use of the word ‘station’ in relation to this constantly moving mite would be amusing, were it not so sad. Jo is destitute in the purest etymological meaning of the word – being one who is utterly without status, station or estate. He is always being moved on, and yet Esther takes him in when she finds him gravely sick. It is most significant to Esther’s symbolic representation of the equitable triumph of substance over form that it is through the substantially beautiful act of nursing Jo that she catches the disease which mars her skin. Mr Snagsby the law stationer offers an intriguing contrast to Esther. Snagsby is friendly to Jo, but despite (or because of) the stasis that his profession as a ‘stationer’ implies – he is unable to resist the legal forces which displace Jo. Snagsby’s missed opportunity comes in chapter nineteen, which has the title ‘Moving on’. There is a commotion when a police constable arrests Jo in the street. The noise reaches the ears of Mr Snagbsy upstairs above his law stationer’s

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See ch 4 at 158−9.

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Motive Moderation shop. The text tells us that ‘Mr Snagsby descends and finds the two ‘prentices intently contemplating a police constable, who holds a ragged boy by the arm’ (19). ‘Why, bless my heart,’ says Mr. Snagsby, ‘what’s the matter!’ ‘This boy,’ says the constable, ‘although he’s repeatedly told to, won’t move on – ’ ‘I’m always a-moving on, sar,’ cries the boy, wiping away his grimy tears with his arm. ‘I’ve always been a-moving and a-moving on, ever since I was born. Where can I possibly move to, sir, more nor I do move!’ ‘He won’t move on,’ says the constable calmly, with a slight professional hitch of his neck involving its better settlement in his stiff stock, ‘although he has been repeatedly cautioned, and therefore I am obliged to take him into custody. He’s as obstinate a young gonoph as I know. He WON’T move on.’ ‘Oh, my eye! Where can I move to!’ cries the boy, clutching quite desperately at his hair and beating his bare feet upon the floor of Mr. Snagsby’s passage. ‘Don’t you come none of that or I shall make blessed short work of you!’ says the constable, giving him a passionless shake. ‘My instructions are that you are to move on. I have told you so five hundred times.’ ‘But where?’ cries the boy. ‘Well! Really, constable, you know,’ says Mr. Snagsby wistfully, and coughing behind his hand his cough of great perplexity and doubt, ‘really, that does seem a question. Where, you know?’ ‘My instructions don’t go to that,’ replies the constable. ‘My instructions are that this boy is to move on.’

Mr Snagsby questions with the constable, but instead of reaching out his hand as Esther does, his hand is withdrawn so close he can cough behind it. This depiction of Mr Snagsby’s descent from on high to restrain the force of law, as if he were a figure of equity, is paralleled in a modern case in English law: CIN Properties Ltd v Rawlins.74 An action was brought to evict a number of youths who were in the habit of frequenting a shopping centre which the local authority had leased to CIN. The judge at first instance, Philip Cox, Recorder of the Wellingborough County Court, dismissed the request for an injunction against the youths, saying: In the absence of any walkway agreement, which the public has no right to demand, it seems to me that equity must step in to preserve for the public an irrevocable right to use these malls in the town centre… even though they are passing through private property. (emphasis added)

Unfortunately this personified intervention of equity, however well-intentioned, was ultimately as ineffectual as Snagsby’s. The decision was overturned by the Court of Appeal and the youths, most of them young black men, were ‘moved 74

CIN Properties Ltd v Rawlins [1995] 2 EGLR 130 (CA).

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The Equity of Esther Summerson on’.75 The mall was apparently one of the few meeting spaces in town which had not been built on for private homes, but if the youths had asked, as Jo asked, ‘But where?’ they would no doubt have received the answer that the constable gave: ‘My instructions don’t go to that’. A case such as this alerts us to a fundamental choice between the legal responses available to remedy a social problem attributable to the over-strict or over-formal or unduly conventional nature of laws or systems of law enforcement. The choice is whether to reform the law radically through legislative intervention, or to reform the law moderately through equitable cultivation. The same choice is arguably discernable as a dilemma in the mind of Dickens, for we know that he was a passionate advocate of radical social reform – especially for the sake of such vulnerable groups as children, debtors and prostitutes – but that he was also passionately opposed to institutionalised methods of achieving such reform. For such a mindset, the intervention of the state may be a necessary evil in some cases, but the ideal will be the intervention of individuals who have been moved, as he is moved, by the compulsion of compassion. An irony that Dickens would have found hard to bear is that the natural agent for equitable intervention, when it is not the ordinary person in the street, is the individual judge hearing the individual case within the general system of the law. Esther Summerson’s moderating influence is seen very clearly in the effect she has on her guardian, John Jarndyce. She brings quiescence to one whose natural inclination is to run from reality. John Jarndyce was Esther’s secret guardian during her youth. He moved her on from one place to the next for her advancement, even accompanying her incognito on one occasion as the mysterious ‘wrapped-up’ gentleman with whom she shares her coach to Reading. When Esther is formally introduced to John Jarndyce, six years later, she realises that he was her mysterious travelling companion all those years before. When she makes this discovery she tells us that he caught her glance ‘and appearing to read my thoughts, gave such a look at the door that I thought we had lost him’(6). On another occasion, Esther observes that a ‘disconcerted’ Mr Jarndyce ‘walked to the window; I almost believed with an intention of jumping out’(9). She was recalling that: Ada dimly remembered to have heard her mother tell, when she was a very little child, that he had once done her an act of uncommon generosity and that on her going to his house to thank him, he happened to see her through a window coming to the door, and immediately escaped by the back gate, and was not heard of for three months. (6)

Their meeting in the coach says something about Esther’s constant motion, but it also reveals how deeply unsettled Mr Jarndyce is. He is a man on the run. He has, for one thing, very wisely run away from the case of Jarndyce and Jarndyce and in

75 The judge at first instance committed the error of attempting to create a new equity without, from the outset, placing limits on its operative scope. Contrast this with the technique successful employed by the Lord Chancellor who invented the freehold restrictive covenant (ch 3 at 88).

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Domestic Goddess the early part of the book any mention of the stresses of the case is liable to produce the instinct to flee. John Jarndyce calls trouble by the name of ‘the East Wind’. It is this which blows him into the room he calls ‘the growlery’ and, on occasion, out of the window. Esther tempers the wind. She relates to us the opinion of her friends that ‘there could be no east wind’ where she was (30). Even the face of John Jarndyce is said to be ‘quick…full of change and motion’ (6). Mr Jarndyce might not literally take flight out of windows, but he evades the thanks which the beneficiaries of his generosity wish to bestow on him. This seems modest, but in fact it amounts to an evasion of responsibility. Miller sees a ‘kind of coercion in Jarndyce’s goodness’, in its aspect of ‘self-abnegation’.76 To modestly downplay a gift one has given is subtly to ignore the bond of gratitude – and credit – which the gift has created and the power that by this dynamic the creditor has acquired over the debtor. Esther exerts a restraining influence on Jo, John Jarndyce and arguably on Dickens himself. I agree with WJ Harvey, who said that ‘we may properly consider one of Esther’s functions to be that of a brake, controlling the runaway tendency of Dickens’s imagination’.77 If so, she bridles Dickens as she bridles the extremity of law. It follows that she reveals an equitable dimension to Dickens’ character. Dickens’ decision to disguise himself, and his narrative, in Esther was a decision in favour of equity and moderation. It is as if Dickens restrains himself in spite of himself. That, as we have seen, is the very function of equity in law; and of the equitable character generally.

Domestic Goddess In chapter four we discovered equity’s poetic power to give a name to abstractions and a home to intangible ideas. In this chapter we have seen that Bleak House is a novel in which the progress of Esther Summerson towards her name represents the triumph of equity. In this section we will see that equity is also triumphant in Esther’s homeliness and her eventual homecoming. Esther had only just arrived at Bleak House and was in the very process of unpacking and putting her ‘worldly goods away’ when a maid came in and presented her with a basket containing two bunches of keys – one set for housekeeping and one set for the cellars – every key labelled. Esther showed her surprise on being told that the keys were for her and that she had been assigned the position of housekeeper:

76 Miller, ‘Introduction’ to Charles Dickens, Bleak House, above n 9 at 11–34, 32. See also, M Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge, Cambridge University Press, 2003) 41–42. 77 WJ Harvey, ‘Bleak House’, Character and the Novel (London, Chatto and Windus, 1965) 147.

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The Equity of Esther Summerson I…stood looking at the basket, quite lost in the magnitude of my trust. Ada found me thus and had such a delightful confidence in me when I showed her the keys and told her about them that it would have been insensibility and ingratitude not to feel encouraged. (6)

Like Esther, we are surprised that she has been given this task. All the talk before was of her employment as a companion to Ada, but now, without consultation still less consent, it is made clear that she must dance for her supper as well as sing for it. We see clearly that John Jarndyce shies from receiving thanks for his gifts because his gifts are not truly free. So why did Dickens give Esther the housekeeping keys? In terms of plot it keeps Esther ‘down’ (she is even in charge of the cellars) and therefore keeps alive the fairy tale possibility that she might be lifted up from her lowly position by her ‘prince charming’, Allan Woodcourt. In terms of symbol, the keys serve two purposes. The first is to connect Esther to the prison imagery of the Court of Chancery. Esther’s keys are a symbol of her freedom from its bars. She inhabits the world of chancery and she might even have a remote interest in Jarndyce and Jarndyce,78 but she is a free person in the prison – like the warden in that respect, though crucially she is free of official status: in fact neither warden – nor (as the text makes expressly clear) a ‘ward’. The second, but by no means secondary, signification of the keys is that they symbolise domestic competence, as housekeeping keys so often do in Victorian novels.79 Domestic order was considered to be the keystone of Victorian society.80 Housekeeping, like gardening, has long-served as a metaphor for good government. The garden is constantly changing and must be tended to keep it in good order, and a house must likewise be constantly maintained or it will fall to dust and cobwebs and ultimately to dereliction. The house of Miss Havisham in Great Expectations is Dickens’ perfect depiction of the stage of dust. In Bleak House, the stage of dereliction is epitomised by Tom-All-Alone’s; the ghetto of properties trapped ‘in chancery’. Bleak House itself was derelict once, before John Jarndyce rescued it. The ruined house ‘in chancery’ was for Dickens the perfect symbol of society badly governed in general and a badly run judicial system in particular. That it was central to his thinking in writing the novel is shown by the list of titles he considered before he settled on Bleak House, which included ‘The Ruined House’, ‘The Solitary House that was always shut up’ and ‘Tom-All-Alone’s’. The ruined house of society, including the derelict system of chancery ‘justice’, was the central problem for Dickens and Esther was supposed to be the great renovator. John Jarndyce expresses Dickens’ personal hope of social reform when he predicts that Esther will ‘sweep the cobwebs out of the sky’ (8). Esther’s housekeeping is

78

See above n 49. E Langland, Nobody’s Angels: Middle-class Women and Domestic Ideology in Victorian Culture (Ithaca, Cornell University Press, 1995) 53. 80 ‘The family home was defined as the nucleus of the state and breakdown in domestic order was understood in terms of total social disintegration’: Nead, Myths of Sexuality: Representation of Women in Victorian Britain, above n 29 at 14. 79

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Domestic Goddess key. The equity of Esther Summerson is of the household variety. As equity makes the law what it should be by constant adjustment, so Esther makes the house what it should be, not by radical change, but by constant careful correction. As Esther lives up to the name of Summerson, so she lives up to the role of housekeeper. Everywhere she goes she cleans and tidies. She tidies for the Jellybys, Richard and even Skimpole. When Richard throws himself on a sofa, ‘tired out’, Esther reports that ‘Ada and I put things to rights, for they had no other servant than the woman who attended to the chambers’ (60). The language is repeated when Richard dies. Esther says that he begins the world: ‘Not this world, oh, not this! The world that sets this right’ (65). Dickens intends that we should see something archetypal and transcendent in Esther’s domesticity – she visits as an angel visits and dwells among us like a domestic goddess. I would like to think that Esther as domestic goddess is an archetype that transcends the mundane gender stereotype of the woman as ideal home-maker. Probably Esther was for Dickens something like an ideal woman, but she was also an ideal expression of himself. Her ideal of practical philanthropy was his ideal (witness, for example, Dickens’ deep personal involvement in the Urania Cottage project for the reform of ‘fallen’ women). Esther’s preference for private initiative over public institutions was Dickens’ preference. As Joseph I Fradin wrote: [W]hile the novel may call for social action, it at the same time everywhere denies the possibility that any action arising from corporate society will better man’s condition . . .By an act of private vision, by the denial of the social will, we may save ourselves; by individual acts of responsibility and love we may sometimes save others. Such would seem to be the ‘message’ of Bleak House.81

Dickens did not intend that Esther should symbolise any hope that the derelict institution of the Court of Chancery might be redeemed through careful modification and incremental reform – his desire was for the entire edifice to be consumed in flame. He expresses this hope at the very end of the opening chapter of the novel,82 and realises it through the conflagration of his allegorical Court of Chancery, Krook’s ‘Rag and Bottle Warehouse’.83 Dickens’ intention is that his readers should imitate the example of Esther and practise equity as individuals in their everyday lives when confronted with injustice arising from excessive formality and legality and over-strict insistence on institutionalised norms.

81

JI Fradin, ‘Will and Society in Bleak House’ (March 1966) 81(1) PMLA 95–109, 109. ‘The empty court is locked up. If all the injustice it has committed and all the misery it has caused could only be locked up with it, and the whole burnt away in a great funeral pyre–why so much the better . . .’ . 83 Compare the destruction of the corrupted ‘house of Clennam and Co’ in Dickens’ Little Dorrit (London, 1855–57). 82

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The Equity of Esther Summerson

The Close of Esther’s Narrative The distinction between ‘Esther’s Narrative’ and that of the other main narrator produces an internal conflict in Dickens’ own authorial will to match the tension in the will of that certain Mr Jarndyce with which we began this chapter. Why did Dickens adopt a dual narrative and what did he achieve by it? Many sophisticated answers have been offered to these questions.84 Whatever the reasons for adopting the dual narrative structure (and we should not ignore the purely practical need to employ a second neutral narrator for those times when Esther had to be kept in the dark), its effect is to make the novel peculiarly formal. Indeed the formal narratives vie throughout the novel as if engaged in a ‘battle of forms’ of the sort which caused the dispute in Jarndyce and Jarndyce in the first place. Ten chapters carry the formal title ‘Esther’s Narrative’ and the final chapter of the book, chapter sixty-seven, is ‘The Close of Esther’s Narrative’. Despite the formal title, Esther’s narrative resists formal closure. Having admired her beautiful family, the novel ends when she suggests that ‘they can very well do without much beauty in me – even supposing – ’. Esther is about to express in text, for the first time, that she is beautiful – but she resists. In this she resembles the displaced Queen Vashti of the biblical book of Esther more than she resembles Queen Esther herself. It was Vashti who refused the King’s request that she should display her beauty to the revellers at his feast. Esther’s narrative ends with an ellipsis that suspends her story in perpetuity.85 She allows her beauty to be unspoken and substantial. Esther Summerson remains unwritten in chancery script or any other kind of script. She remains equity.

84 See eg, MS Kearns, ‘“But I Cried Very Much”: Esther Summerson as Narrator’ (1984) 1 Dickens Quarterly 121–29; V Blain, ‘Double Vision and the Double Standard in Bleak House: A Feminist Perspective’ (1985) 11 Literature and History 31–46; L Hutson, ‘The “Double Voice” of Equity and the Literary Voices of Women’ in D Clarke and E Clarke (eds), This Double Voice: Gendered Writing in Early Modern England (London, Palgrave; New York, St Martin’s Press, 2000); S Graver, ‘Writing in a “Womanly” Way and the Double Vision of Bleak House’ (1987) 4 Dickens Quarterly 3–15; DL Jolly, ‘The Nature of Esther’ (1990) 86 The Dickensian 29–40; RT Gaughan, ‘“Their Places Are a Blank”: The Two Narrators in Bleak House’ (1992) 21 Dickens Studies Annual 79–96; Moseley, ‘The Ontology of Esther’s Narrative in Bleak House’, above n 62 at 35–46, 41. 85 On ‘the grammar of suspension’ in Esther’s Narrative see Wilt, ‘Confusion and Consciousness in Dickens’s Esther’, above n 58 at 285–309, especially 288–89. Wilt writes that the ‘decision to end, suspend, with the unrestful voice of the private world’ is a ‘subtle way to suggest, not conclusive opposition, but the confusion which, as a positive and negative quality, lies at the heart of the narrative’ (289).

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6 Shakespeare’s Equity

S

HAKESPEARE’S USE of legal language and his legal and non-legal use of the word ‘equity’ are in many respects highly informative, as this chapter will show, but we cannot rely solely on such formal clues if we are to discover the true substance of Shakespeare’s equity. The substance of Shakespeare’s equity is to be found not in formal language, but in his opposition to formalism. The errors of formalism are manifold, and Shakespeare’s dramatic works present them in manifold ways. They include the errors of strict reliance on formal power (for example, Measure for Measure, King Lear, The Comedy of Errors, A Midsummer Night’s Dream) and strict reliance on formal laws (for example, The Merchant of Venice, Measure for Measure, The Comedy of Errors, Love’s Labour’s Lost); the error of seeking to fulfil, or to rely on, formal expectations (for example, King Lear, Macbeth, Romeo and Juliet) and the error of relying on external formal appearance (this is a central theme of Hamlet, Prince of Denmark as introduced by the opening line of Hamlet’s first full speech: ‘Seems madam! Nay, it is; I know not “seems”’ (1.2.76)).1 The error of judging by external appearance is explored by Shakespeare in numerous ways, including the use of twins (The Comedy of Errors, Twelfth Night) and other substitutes (see, for example, Measure for Measure and Much Ado About Nothing) and through the conceits of cross-dressing and disguise (for example, The Merchant of Venice, As You Like It, Twelfth Night, King Lear and The Two Gentlemen of Verona); it is also seen, in more serious mode, through the hasty passing of false judgment – typically against innocent women (for example, Othello, Much Ado About Nothing, King Lear, The Winter’s Tale). Even The Taming of the Shrew can be read as a satire on formalism. True, it is a drama about conformity to a certain female stereotype – the ‘Kate conformable as other household Kates’ (2.1.278–79) but it involves a deliberately artificial and disturbing transformation from the exact opposite female stereotype of the shrewish ‘wild Kate’ (2.1.278) and so it teaches the unreliability of all stereotypes and exaggerated outward forms. Similarly in The Merchant of Venice Shakespeare presents and then transforms the stereotype of the Jew. Before he is robbed of his 1 All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated.

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Shakespeare’s Equity daughter and his ducats and turns to revenge, there is only one place in the play in which Shylock portrays himself as the medieval stereotype of the Christianhating, usurious Jew, and it is highly significant that this one moment comes in an aside, presumably addressed to the groundlings who stood below stage level in the Elizabethan theatre. Shylock says: How like a fawning publican he looks! I hate him for he is a Christian, But more, for that in low simplicity He lends out money gratis and brings down The rate of usance here with us in Venice. If I can catch him once upon the hip, I will feed fat the ancient grudge I bear him. He hates our sacred nation, and he rails Even there where merchants most do congregate On me, my bargains, and my well-won thrift, Which he calls interest: Cursèd be my tribe, If I forgive him! (1.3.28–39)

The groundlings would have enjoyed the sport of interaction with ‘the Jew’ as pantomime villain.2 (The first folio edition even ascribes the aside to the character of ‘Iew’, whereas Shylock’s very next line is ascribed to ‘Shy’.) It is as if Shylock is goading their prejudice. It is as if Shakespeare is saying to them: ‘Is this the Jew you recognise from inferior drama? Is this your familiar Jew? Is this the Jew you paid to see? Well now you see him, but soon you will not. I am going to show you a different Jew’. Shylock’s aside should be read as a knowing joke between the actor and the groundlings – ‘I hate him because he is a Christian’ (actor winks; groundlings ‘boo’). Shakespeare takes the medieval stereotype and transforms it into Shylock. Not a fully-rounded person, perhaps,3 but the only character in the play who exhibits a warm wit and non-mercantile values: the man who would not trade his engagement ring for a wilderness of monkeys, the man who quips that he makes money breed like sheep, the man who asks ‘prick us do we not bleed?’ Shylock’s superiority to the other characters in the play becomes manifest in performance. Portia and Antonio tie, in distant second place, but Shylock is the lead character: ‘none other has such emotional range, such continual development, such stature, such force, subtlety, vitality, variety; above all, none other has his intensity, isolation, and apparent depth of motivation’.4 It has been said that the play ‘seems to invite condemnation as an anti-Semitic text’ but that ‘it has repeatedly, in performance, revealed a contrasting nature. Shylock, though vanquished in the law-court, triumphs in the

2 Among the groundlings were ‘the youths that thunder at a playhouse, / and fight for bitten apples’ (Henry VIII, 5.3.48–49). 3 See A Shütz, ‘Shylock as a Politician’ in P Raffield and G Watt (eds), Shakespeare and the Law (Oxford, Hart Publishing, 2008) 271–87. 4 JR Brown, Shakespeare’s Plays in Performance (London, Edward Arnold, 1966) 90.

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Shakespeare’s Equity theatre’.5 Even when Shylock enters into the bond with Antonio, why should we not take him at his word and believe that it was, at first, (until Shylock lost his daughter to the Venetian Christians)6 a ‘merry jest’; perhaps Shylock was deliberately seeking a way to trap Antonio (as the aside suggests) or perhaps he was saying ‘the stereotype is that I will charge you interest, so I will not; the stereotype is that I eat human flesh,7 so pledge me a pound of your flesh. I do not really believe that you will default and I do not prefer a pound of your flesh to the return of my capital plus interest – but I will have this joke with you to disprove the stereotype’. The fact (often overlooked) that the capital loaned by Shylock was not in fact Shylock’s money, but money that Shylock had borrowed from his friend Tubal, strengthens the view that (at the outset at least) Shylock would indeed have preferred to receive repayment of the loan than to have received Antonio’s flesh. The Merchant of Venice is not an anti-Semitic play,8 and The Taming of the Shrew is not sexist. Shakespeare wants us to see that Kate’s apparent conformity is unreliable – that it is as doubtful as the label ‘moon’ which her husband Petruchio compels her to apply to the sun (4.3.19). Even at the end of the play, when she appears to have been tamed, we have the sense that her substance has not changed and that Petruchio has been fooled by a mere outward change of form. The warning not to conform to type is sounded at the very outset in the cameo of Christopher Sly.9 The drunken tinker wakes up dressed as a lord and for a jest is encouraged to believe he is such – right down to the detail of having a wife (who is in fact the real lord’s page in disguise). The main drama of the play (Petruchio, Kate and the rest) is presented as a play-within-the-play to put ‘Lord’ Sly in good humour. Jonathan Bate argues that Sly’s cameo renders the main drama formally unreliable, that it places ‘the entire play in quotation marks’; Shakespeare is therefore warning his audience that ‘this is not how to tame a shrew’.10 Shakespeare disturbs form in another way when Petruchio chooses to wear tatty clothes for his wedding, and his insistence that he and his bride should both wear ‘mean

5

CT Watts (ed), The Merchant of Venice (Ware, Wordsworth Classics, 2000) 9. It is true that Jessica gives testimony against Shylock: ‘When I was with him I have heard him swear / To Tubal and to Chus, his countrymen, / That he would rather have Antonio’s flesh, / Then twenty times the value of the sum’ (3.2.290–93) but what biased testimony it is. She is clearly trying to ingratiate herself with her new Christian companions and trying to distance herself from her fellow Jews – even to the extent of implying that they are not her ‘countrymen’. 7 See PW van der Horst, ‘Jewish Cannibalism: The History of an Antisemitic Myth’ (2008) 144 Telos 106–28. 8 Certain headlines notwithstanding (see eg, Richard Garner’s article ‘Jewish pupils boycott exam in Shylock protest’ The Independent (1 March 2008)). 9 Charles Phelps argues convincingly for a connection between ‘Christopher Sly, old Sly’s son of Burtonheath’ (Induction, scene 2, lines 14–15) and John Lambert, a legal adversary of the Shakespeare family (see p 201 below) who was son of Edmund Lambert of Barton-on-the-Heath’. (CE Phelps, Falstaff and Equity: An Interpretation (Boston, Houghton, Mifflin and Company, 1902) (reprinted 2002 by The Lawbook Exchange, Ltd) 126). 10 J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works above n 1 at 527. 6

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Shakespeare’s Equity habiliments’ (4.1.163) on their return to Padua. Shakespeare, who had first-hand experience of the legal formalities which attend a marriage,11 was clearly amused by the contrast between the informality of romantic love and the legal formalities of marriage. Marriage should be a joining of hands and hearts with nothing coming between, but for Petruchio it requires formal ‘specialities’ to be drawn ‘between’ them, so that ‘covenants may be kept on either hand’ (2.1.124–25). The satire on marriage formality approaches its climax when Lucentio’s servant Tranio (pretending to be Lucentio) summons a scrivener to draw up legal formalities (4.2.59) for his marriage to Bianca and reaches its climax in the formally fraudulent marriage between Bianca and Lucentio (disguised as Cambio). Even the names evoke the unreliability of external form: Tranio is suggestive of ‘I cross over’ and Cambio is Italian for ‘I change’. Shakespeare’s work, taken as a whole, resists the error of formalism and cliché through its genius originality. Even the original continues to achieve new originality. Shakespeare’s body of work defies stasis – it is a body never quite at rest. It is continually challenged and changed through nuances of edition,12 scholarly interpretation – and most of all by an infinite capacity to be performed in particular ways.13 Performance is one of the great exercises in ‘equity’ (or in ‘more just judgment’ or ‘more pleasing justice’; however we phrase it) because it shows the infinite capacity of language to live beyond the letter, and the corresponding inability of texts – legal or otherwise – to hold it back. Performance also places all parties – including actor, director and audience – in the judgment seat. Performance calls for equity whichever way we look at it – and so it should, because performance is just like life. Shakespeare’s comedies appear often in the list of plays addressing the issue of equity, and none appears more often than The Comedy of Errors. It is appropriate that this play should feature so prominently – the title of The Comedy of Errors is the only literally reliable formality in it. Shakespeare’s comedies, and The Comedy of Errors in particular, belong to the dramatic tradition in which a complex state of confusion or error is brought to a pleasing resolution. Error is identified with the Aristotelian notion of hamartia and the dramatic resolution – or smoothing

11 Fulke Sandells and John Richardson entered into a marriage bond for William Shakespeare and Anne Hathaway (Worcester Record Office, X 797 BA 2783, reproduced in S Schoenbaum, William Shakespeare: A Documentary Life (Oxford, Clarendon Press in association with the Scholar Press, 1975) fig 59. See G Greer, ‘Shakespeare and the Marriage Contract’ in Raffield and Watt (eds), Shakespeare and the Law, above n 3 at 51–63. 12 For example some editions (including The RSC Shakespeare (above n 1)) have ‘Inogen’ instead of ‘Imogen’ as the daughter of Cymbeline. See E Rasmussen, ‘Editions and Textual Studies’ in S Wells (ed), Shakespeare Survey: Shakespeare and The Globe vol 52 (Cambridge, Cambridge University Press, 1999) 302, 322–23. See generally, EAJ Honigmann, The Stability of Shakespeare’s Text (London, Edward Arnold, 1965). 13 It has been said, for example, that ‘Hamlet cannot be performed in its entirety…one can perform only one of several Hamlets’: J Kott, Shakespeare Our Contemporary (London, Methuen, 1965) 58.

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Shakespeare’s Equity away – of the error is identified with Aristotle’s concept of epieikeia.14 The modern equitable jurisdiction to relieve from the consequences of mistake, especially the rectification of documentary errors,15 was emerging when Shakespeare was writing. It should not be supposed, though, that equity’s correction of error operates by producing simplicity from complexity. It is over-simplicity that transforms the beautiful complexity of life into dangerous error and confusion in the first place. The type of error that Aristotle had in mind is not an error of complexity, but an error of simplicity: ‘the error (hamarte¯ma) due to…absolute statement (dia to haplos)’.16 The remedial action of Aristotle’s leaden rule on a simple square of stone is to shape it to fit the complex contours of nature. The action of epieikeia is therefore one that produces fitting complexity out of stubborn simplicity. Even in the juridical context, equity’s solutions are generally more complex than those of the common law: examples include the award of an injunction or specific performance instead of simple monetary damages.17 Zurcher notes that similar complexity characterised equitable innovation at the time that Shakespeare was writing The Comedy of Errors.18 Zurcher suggests, for instance, that the ‘shift in the common law from debt to assumpsit’ tends ‘toward a more equitable response to real transactional problems’.19 The scheme of The Comedy of Errors is equitable not because it is one that moves from an error of complexity to a simple resolution, but because it moves from over-simplicity – the tyranny of a single voice – towards a state of dialogue. In the first Act, Duke Solinus stays the execution of a law of Ephesus which by its strict terms requires Egeon, a merchant of Syracuse, to be put to death or pay a fine of 1000 marks. This is the monologue of strict law at the start of the play. The drama moves from there to a personal dialogue: the Duke hears Egeon’s story and, moved by it, grants him until dawn to raise the sum. From this equitable dialogue, the play descends into complex confusion. It finally ends with what appears to be pleasing simplicity, but what in truth is a new dialogue. Whatever simplicity there is, is achieved by overlaying the complex contours of the comedy with a correspondingly complex solution (the fortuitous rescue from a shipwreck of infant twins

14 See MT Herrick, Comic Theory in the Sixteenth Century (Urbana, Ill, University of Illinois Press, 1950); T Cave, Recognitions: A Study in Poetics (Oxford, Clarendon Press, 1988). For a useful overview see K Dolin, Critical Introduction to Law and Literature (Cambridge, Cambridge University Press, 2007) 82–84, referring to Kahn and Hutson, ‘Introduction’ in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001). 15 Gibbon v Mitchell [1990] 1 WLR 1304; Gallaher Limited v Gallaher Pensions Limited [2005] EWHC 42. 16 Aristotle, The Nichomachean Ethics (5.10–6.7) c 350 BC (trans K Eden) Hermeneutics and the Rhetorical Tradition: Chapters in the Ancient Legacy and Its Humanist Reception (New Haven, Yale University Press, 1997) 13. 17 See ch 3 at 114. 18 Andrew Zurcher observes that ‘the common law was moving…from a general remedy (debt) to a special remedy (the action on the case) for nonfeasance on a contract’ (A Zurcher, ‘Consideration, Contract and the End of The Comedy of Errors’ in Raffield and Watt (eds), Shakespeare and the Law, above n 3 at 19–37, 36; first published at (2007) 1(2) Law and Humanities 145). 19 Ibid.

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Shakespeare’s Equity and their mother by passing fishermen gives a flavour of it). The solution to the play is like a leaden rule which has been bent almost out of shape to fit the facts – this is not a simple outcome, just a better confusion. In a sense, but not cynically, it is to ‘fail better’.20 To put it more positively, we can say that the outcome finds the equitable mean between the over-strict simplicity of the start and the extreme complexity of the main body of the drama. It ultimately finds the equitable mean in the dialogue between the twins Dromio of Syracuse and Dromio of Ephesus who at the play’s close exit ‘hand in hand, not one before the other’ (5.1.429).

Shakespeare’s Legal Language It has been observed that Shakespeare’s drama is ‘striated with legal terminology, particularly with that concerning property law’.21 The same is true of the work of other Elizabethan playwrights: the legal seam is rich in the works of Beaumont and Fletcher, Chapman, Dekker, Ford, Greene, Heywood, Jonson, Massinger, Middleton and Webster, but it is nowhere richer than in the works of Shakespeare. Shakespeare had an extensive personal acquaintance with law, lawyers and legal documentation – especially in connection with property matters. We know that he was involved in numerous legal transactions – including the marriage bond entered into by friends of Anne Hathaway to secure her marriage to him (1582);22 the purchase of New Place, Stratford (1597);23 the purchase of a share in the Globe Theatre (1599);24 the purchase of 107 acres of arable land and the purchase of a cottage, both in the Stratford area (1602);25 the purchase of an interest in tithes in the Stratford area (1605); the purchase of a share in a lease of Blackfriar’s Theatre (1608); the purchase and mortgage of a gatehouse in Blackfriars (1613) and the drawing up and revision of his will (1615−16). We also know that he was directly and indirectly involved in litigation, much of it started by the poet to recover debts due to him. In addition to a good deal of litigation flowing from the purchase of the Stratford tithes (which involved, in 1612, the 20 Samuel Beckett’s phrase (Worstward Ho (1983) in SE Gontarski (ed), Nohow On (New York, Grove Press, 1996)). 21 P Ackroyd, Shakespeare: The Biography (London, Chatto & Windus, 2005) 80. See generally, PS Clarkson and CT Warren, The Law of Property in Shakespeare and the Elizabethan Drama (Baltimore, The John Hopkins Press, 1942, rpt New York, Gordian Press, 1968); D Carpi (ed), Property Law in Renaissance Literature (Frankfurt am Main, Peter Lang, 2005); H Dubrow, ‘“They took from me the use of mine own house”: Land Law in Shakespeare’s Lear and Shakespeare’s Culture’ in D Kezar (ed), Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame, IN, University of Notre Dame Press, 2007) 81–82. 22 See above n 11. 23 Which, due to the death of the vendor, was not formally finalised until 1602 (Notes and Queries 8th Series v at 478). 24 J Shapiro, 1599: A Year in the Life of William Shakespeare (London, Faber & Faber, 2005). 25 Which was conveyed to his brother Gilbert ‘to the use of ’ William (JO Halliwell-Phillipps, Outlines of the Life of Shakespeare 7th edn (London, Longmans, 1887) pt 2 vol ii, 17–19). On the nature of ‘the use’ see ch 3 at 120−24.

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Shakespeare’s Legal Language presentation of a bill of complaint to Lord Chancellor Ellesmere himself)26 he had numerous other encounters with the law, including an action against Philip Rogers of Stratford for the payment of a debt (1604); he was awarded judgment in an action for repayment of a loan from Stratford resident John Addenbroke (1609) and he acted as a witness for his landlord and friend in Belott v Mountjoy (1612).27 Shakespeare’s father was also a party to the prolonged chancery litigation in Shakespeare v Lambert and on 26 September 1587 William was named as a party to an attempted compromise of that suit.28 The suit concerned land which had passed to his mother under her father’s will and which Shakespeare was in line to inherit, but his father mortgaged the land to Edmund Lambert and it was forfeited when he failed to repay the debt on time. The compromise having failed, a suit was commenced in the Queen’s Bench in 1589. One reason why Shakespeare’s depiction of Shylock’s is so humane now presents itself – it is that Shakespeare saw something of himself in Shylock’s insistence on his legal rights (with a little imagination even the name ‘Shake’-speare can be seen to contain an echo of ‘Shylock’).29 How could Shakespeare write so humanely and live so litigiously? The answer lies in part in the litigious nature of society in early modern England and in part in the fact that it is, in Portia’s words, ‘easier to teach twenty what were good to be done, then be one of the twenty to follow [their] own teaching’ (1.2.11–12). When we discern Shakespeare’s equity in his works, we are hopefully glimpsing a reflection of the real equity of the man; if we are not, it is good enough that we are discerning the equity of his work. In addition to his involvement in the catalogue of litigation just set out, Shakespeare encountered lawyers at the Inns of Court, where barristers socialised and were schooled in the lawyers’ arts. The Comedy of Errors was performed at Gray’s Inn (1594) and the only recorded contemporary performance of Twelfth Night, or What You Will took place at a barristers’ feast at the Middle Temple (1602) where an early version of Troilus and Cressida is thought to have been performed by the barristers themselves in 1598.30 In the light of his many

26 T Brooke, ‘Shakespeare’s Moiety of the Stratford Tithes’ (December 1925) 40(8) Modern Language Notes 462–69. 27 Discussed in C Nicholls, The Lodger: Shakespeare on Silver Street (London, Penguin, 2007). 28 Discussed at length throughout W Nicholas Knight’s, Shakespeare’s Hidden Life: Shakespeare at the Law 1585–1595 (New York, Mason & Lipscomb, 1973). 29 For more plausible onomastics on the name Shylock (including its consonance with the ‘schilling’ (cutting) of metal to make money and the ‘shearing’ of the locks of a fleece from a ewe) see G Watt, ‘Breed of Metal and Pound of Flesh: Faith and Risk in Metaphors of Usury’ (2007) 2 Pólemos 95–116, 97. 30 P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power 1558–1660 (Cambridge, Cambridge University Press, 2004) 26, citing JL Hotson, ‘Love’s Labour’s Won’ in Shakespeare’s Sonnets Dated (London, R Hart-Davis, 1949) 37–56.

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Shakespeare’s Equity encounters with lawyers and litigation, it would be remarkable if Shakespeare had not acquired an intimate familiarity with the language of the law.31 It is even possible that Shakespeare was employed as an apprentice law-writer or ‘scrivener’ (the human precursor to the photocopier) during the so-called ‘lost years’ between 1587, when he probably left Stratford, and 1592, when he was almost certainly in London.32 It is an intriguing conjecture. Certainly, his dramatic texts provide evidence of detailed acquaintance with, and even empathy with, the profession of the humble law writer. Sonnet 84, for example, is laden with the terminology of the trade: ‘Let him but copy what in you is writ, Not making worse what nature made so clear, And such a counterpart shall fame his wit, Making his style admirèd every where’. (emphasis added)

The Life and Death of King John (c 1595–97) provides a passage similarly laden, where Lewis, the Dauphin to Melun, says: My Lord Melun, Let this be copied out, And keep it safe for our remembrance: Return the precedent to these lords again, That, having our fair order written down, Both they and we, perusing o’er these notes, May know wherefore we took the sacrament, And keep our faiths firm and inviolable. (5.2.1–7) (emphasis added)

Similar language appears in Love’s Labour’s Lost (1595) where Armado says: ‘I will have that subject newly writ o’er, that I may example my digression by some mighty precedent’ (1.3.87–88) (emphasis added). The word ‘precedent’ is here referring to the original document which it was the scrivener’s job to copy. In the passage from Richard III (1592–93) set out below, Shakespeare uses ‘sequel’ to denote the scrivener’s copy. Shakespeare’s personal empathy with the lower orders of the legal profession is also apparent from The Merchant of Venice where Gratiano acknowledges that the lawyer’s clerk ‘took some pains in writing’ (5.1.192). The comment is a strangely intimate departure from the grand scheme of the play, which heightens the sense of Shakespeare’s own personality within it. A similarly empathic reference appears in Richard III where ‘a scrivener’ is given a surprisingly long speech; it starts:

31 It has been conjectured that Shakespeare knew such contemporary legal luminaries as the jurist William Lambarde, author of the influential Archeion (Archeion, or, A discourse upon the high courts of justice in England (1591) (revised 1598) (London, printed by E P[urslowe] for Henry Seile, dwelling at the Tygers-head in St Pauls Church-yard, 1635). See W Nicholas Knight, ‘Equity, The Merchant of Venice and William Lambarde’ (1974) 27 Shakespeare Survey 93–104 and Shakespeare’s Hidden Life, above n 28, ch 3 at 72–74. 32 Knight, ibid.

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Shakespeare’s Legal Language Here is the indictment of the good Lord Hastings; Which in a set hand fairly is engross’d, That it may be to-day read o’er in Paul’s: And mark how well the sequel hangs together. Eleven hours I have spent to write it over, For yesternight by Catesby was it sent me. The precedent was full as long a-doing. (3.6.1–7)

Even if Shakespeare had never worked as a law writer, he certainly employed scriveners to transcribe his manuscript ‘foul papers’ into ‘fair copy’ for use by the actors in his company and as preparation for print publication, and some of these had been law writers by training or trade.33 Of course it may be that Shakespeare’s apparent empathy for the humble law-writer was simply the playwright’s solidarity with those who, like he, undertook a daily (and nightly) labour of letters. If Shakespeare had commenced his writing career as a law writer, he would not have been the first person to leave that trade to pursue the poetic arts. In his introduction to Robert Green’s Menaphon (1589), Thomas Nashe wrote that: It is a common practise now a daies amongst a sort of shifting companions, that runne through every arte and thrive by none, to leave the trade of Noverint whereto they were borne, and busie themselves with the endeavors of Art, that could scarcelie latinize their necke-verse if they should have need.34

‘Noverint’ was another name for scrivener, so named because of the pro forma opening words to an Elizabethan deed: ‘Noverint Universi Per Presentes’.35 Nashe goes on to mock the Noverint’s ‘whole Hamlets’ as being nothing more than ‘handfuls of tragical speeches’. He might have had an early version of Shakespeare’s play in mind, but it is more likely a reference to Thomas Kyd who it is presumed (from his handwriting) was apprenticed to his father, a scrivener, and is believed to have written an early Hamlet tragedy.36 Given that Shakespeare’s dramatic (and other) works are so richly striated with legal terminology, with the law of property – including land law – providing so rich a seam, it is surprising that specific references to equitable property are so scarce. He does use language that is highly evocative of chancery procedures, doctrines and remedies, including ‘injunction’, ‘conversion’ ‘election’ and ‘performance’ – indeed, Portia and her maid Nerissa between them use every one of

33 The best known is Ralph Crane who was a legal scrivener before he turned to artistic pursuits, including work on the texts of the 1623 first folio edition of Shakespeare’s works. In 1619 he drew up the will of the actor Richard Burbage (see EAJ Honigmann and S Brock, Playhouse wills, 1558–1642: an edition of wills by Shakespeare and his contemporaries in the London theatre (Manchester, Manchester University Press, 1993) 17, a facsimile of the Burbage will is reproduced at 115). 34 T Nashe ‘To the Gentlemen Students of both Universities’ (preface to R Greene, Menaphon: Camilla’s alarum to slumbering Euphues, etc (c 1589)). 35 See ch 3 at 115. 36 GW Keeton, Shakespeare’s Legal and Political Background (London, Pitman, 1967) 38.

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Shakespeare’s Equity these words (or a sibling, such as ‘converted’) in connection to the casket test established by Portia’s father’s will in The Merchant of Venice37 – but Shakespeare was not using these terms in their technical chancery sense. He never even uses the word ‘chancery’ in his works and, more surprising, ‘chancellor’ appears in only two plays. He hardly ever refers to property devices created in the Court of Chancery. There are numerous references to ‘gages’, some of which imply legal significance, but there is only one express use of the word mortgage.38 The mortgage litigation of Shakespeare v Lambert might explain why the word ‘mortgage’ is expressly mentioned only once in Shakespeare’s works, and only then in a sonnet; the subject may have been emotionally just too close to home. The reason why his works contain not a single reference to the ‘equity of redemption’, which is the concept created in chancery to counter unjust forfeiture of mortgaged lands, is more straightforward – there is no evidence that the concept had acquired that name before Shakespeare’s retirement (indeed the lack of any Shakespearean reference to it is itself some small evidence to show that it had not).39 More surprising than Shakespeare’s sparing allusion to chancery aspects of mortgage law, is his scant reference to the chancery trust. The modern idea of trust certainly existed when Shakespeare was writing, and yet there is no clear instance in his work in which the word trust is used in its technical chancery sense. The reference in Macbeth to ‘double trust’ (1.8.12) appears in the midst of legal language and evokes the then contemporary trust in the form of a ‘use upon a use’, but it seems in context to suggest a non-chancery meaning. The same can be said of the reference in Pericles, Prince of Tyre to a ‘seal’d commission, left in trust’ (1.3.13) and the reference in Richard III to the minority of the young Prince of Wales being ‘put unto the trust of Richard Gloucester’ (1.3.12). Shakespeare comes close to the chancery idea in Sonnet 48, where the propinquity of the

37 In the court scene Portia also alludes to the equitable doctrine of ‘election’ (4.1.344) when she holds Shylock to his choice to decline the offer of ducats to settle his suit, because ‘[h]e hath refused it in open court’. Despite its name, the equitable doctrine does not confer a right to choose; rather it restricts the right to choose by holding parties to their choices, and in particular by ensuring that no party takes a benefit without taking an associated burden (Nexus Communications Group Ltd v Lambert [2005] EWHC 345 (Ch D). 38 Sonnet 134. 39 Chancery was willing from a very early date to grant relief in special circumstances to mortgagors who had defaulted on their strict common law duty to repay the debt on the date specified in the mortgage deed (Spence cites YB 9 Edw IV 25 and Rainsford v Logan (1603) Reg Lib B (G Spence, The Equitable Jurisdiction of The Court of Chancery (in two volumes) vol I pt II (Philadelphia, Lea and Blanchard, 1846) 601 fn (g).) It is not clear at what point the ‘equity of redemption’ evolved from an exception into a routine, but it was being routinely enforced by 1625 (Emmanuel College v Evans (1625) 1 Ch Rep 18). RW Turner argued in his treatise, The Equity of Redemption, that it was not until after Chancery’s supremacy over common law had been established in 1616 by King James’ intervention in The Earl of Oxford’s Case – in fact not until Lord Bacon became Chancellor in 1618 – that recognition of the equity of redemption became routine (RW Turner, Equity of Redemption: Its Nature, History and Connection with Equitable Estates Generally (Cambridge, Cambridge University Press, 1931) 26 and 27–28). It seems quite likely, therefore, that the move from exception to routine had begun during Shakespeare’s lifetime.

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Shakespeare’s Legal Language words ‘use’, ‘trust’ and ‘ward’ (‘ward’ is especially, though not exclusively, associated with chancery) is suggestive of the chancery trust. He writes ‘[t]hat to my use it might unusèd stay / From hands of falsehood, in sure wards of trust’. The closest Shakespeare comes to providing a clear reference to the chancery ‘trust’ is in fact a reference to the chancery ‘use’.40 In The Merchant of Venice when Antonio says: ‘To quit the fine for one half of his goods, / I am content; so he will let me have /The other half in use’ (4.1.388). More doubtfully, there might be some legal significance to his reference to the chancery trust in the first scene of the play: ‘Go, presently inquire, and so will I, / Where money is, and I no question make / To have it of my trust or for my sake’ (1.1.185–87). Why are Shakespeare’s references to the chancery use and trust so sparing compared with his very widespread use of the standard common law language of testamentary disposition and conveyance of land? It must be significant that in Shakespeare’s lifetime the chancery idea of property in rem was only just emerging from the chancery tradition of acting in personam. In chapter three we saw that the modern trust in the form of ‘a use upon a use’ was invented shortly before Shakespeare’s birth and was in widespread use within a few years of Shakespeare’s death, but it would be another half century before chancery’s innovations settled into a scheme which we would nowadays recognise as a system of property law. As a sign of the chancery trust’s relative novelty when Shakespeare was writing we can note that the testamentary problem which opens the drama in As You Like It would nowadays have been solved by a so-called ‘secret trust’, but chancery did not evolve to that point until 1685.41 The simple ‘use’ was a much older idea than the chancery trust, as we saw in chapter three,42 so its slight showing in Shakespeare’s drama cannot be explained on grounds of novelty. The best explanation may be that the legal territory of ‘use’ had already been taken by the dramatically profitable concept of usury.43 Whatever the explanation for Shakespeare’s parsimony in referring to the chancery ‘use’ and ‘trust’, other dramatists of the period were equally frugal. Clarkson and Warren claim that among dramatists of the period only Jonson, Massinger and Middleton expressly refer to uses and trusts (they inexplicably overlook Antonio’s reference in The Merchant of Venice).44 Ben Jonson is unusual in making multiple references to ‘trust’ and ‘use’ of property,45 but the most intriguing reference occurs in Philip Massinger’s A New Way to Pay Old Debts (c 1625) not only because it expressly refers to ‘land…in trust’ in the

40

See ch 3 at 120−24. Shakespeare was himself the beneficiary of a use (see above n 25). Thynn v Thynn (1685) 1 Vern 296. Discussed in D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999) 207. A case akin to As You Like It, in which a father had charged the elder son to look after the younger, was remedied in Rookwood v Rookwood (1589) 1 Leon 193, Cro El 164 by artificially treating the younger, son as the promisee of the elder’s promise on the basis of assumpsit (Ibbetson at 140–41). 42 See ch 3 at 120−24. 43 See above n 29. 44 The Law of Property in Shakespeare and the Elizabethan Drama, above n 21 at 140, 143. 45 Ibid. 41

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Shakespeare’s Equity context of legal dispute, but because the person who in this scene is so insistently standing on his legal rights (he is listed in the dramatis personae as ‘a cruel extortioner’) is Sir Giles Overreach. To overreach meant quite a different thing back then, but it has come to refer to the process by which a purchaser of legal title to land is able to take it free of any equitable trust attaching to the land.46

Shakespeare and the ‘Equity’ Word For all his reliance on legal terminology, Shakespeare is remarkably sparing in his use of the word ‘equity’; it appears only four times in all his works, and ‘equitable’ never. One might expect it to appear in the major ‘law plays’ The Merchant of Venice and Measure for Measure, but instead it appears in somewhat unlikely plays: I Henry IV, II Henry VI, King Lear and The Life and Death of King John; and in some unlikely places. In I Henry IV Falstaff appeals to equity in the course of committing a highway robbery and in the 1608 quarto version of King Lear, the King resorts to equity when, in the midst of his madness, he establishes an imaginary court in a hovel: I’ll see their trial first. Bring in their evidence. [To Edgar.] Thou robéd man of justice, take thy place; [To the Fool.] And thou, his yokefellow of equity, Bench by his side [To Kent.] You are o’ th’ commission, Sit you too.47 (3.6.37–39)

This reference is the only occasion on which Shakespeare uses ‘equity’ in its technical chancery sense. The scarcity of the ‘equity’ word in Shakespeare’s works increases its value. It helps us to see a golden thread uniting all four instances: they all concern the qualities of princely rule. For Shakespeare, ‘equity’, like its close cousin ‘mercy’, is ‘an attribute of God that becomes the sceptred monarch better than his throne’ (The Merchant of Venice, 4.1.189). Yet there is a twist in the golden thread, for in Shakespeare’s works every express appeal to ‘equity’ occurs when equity is most absent. Equity becomes apostrophe. This is abundantly clear from its appearance in the hovel ‘trial’ in King Lear and in the highway robbery in I Henry IV, both of which we will consider in detail below, but it is also apparent from the passages in II Henry VI and The Life and Death of King John, which refer respectively to ‘equity exiled’ and ‘downtrodden equity’:

46

The Law of Property Act 1925 ss 2, 27. Text references for this scene are from P Edwards (ed), King Lear The Macmillan Shakespeare (London and Basingstoke, Macmillan, 1975) 163. 47

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Falstaff and Equity – a Reinterpretation Ah, gracious lord, these days are dangerous: Virtue is choked with foul ambition And charity chased hence by rancour’s hand: Foul subornation is predominant And equity exiled your highness’ land’. (Gloucester addressing Henry VI, II Henry VI 3.1.142–46) Lo! in this right hand, whose protection Is most divinely vowed upon the right Of him it holds, stands young Plantagenet, Son to the elder brother of this man, And king o’er him and all that he enjoys: For this downtrodden equity, we tread In warlike march these greens before your town. Being no further enemy to you Than the constraint of hospitable zeal In the relief of this oppressèd child, Religiously provokes. (King Philip addressing the citizens of Angiers, The Life and Death of King John 2.1.242–52)

The latter passage employs equity to denote the natural or divine law of succession to the royal throne. It was used in the same sense by Stephen Hawes in the poem Example of Virtue (c 1503–04) which was dedicated to the Prince of Wales, the future King Henry VIII: ‘Prince Henry is sprung, our King to be,/ After his father, by right good equity’.48 Shakespeare could have used the very same words to describe the succession of Prince Hal, Henry V, to the throne of his father Henry IV, but he brilliantly subverts the expected usage by allowing Falstaff to pervert the idea of royal equity into a joke.

Falstaff and Equity – a Reinterpretation Falstaff ’s apostrophe to ‘equity’ in the highway robbery scene on the road to Gadshill (I Henry IV, Act 2 scene 2) calls for close analysis, so it will be efficient to set out an abridgment of the whole scene (line references are indicated in parenthesis where appropriate).49 The scene commences with Poins (also called ‘Ned’) boasting that he has taken and hidden Falstaff ’s horse. Falstaff enters in a highly agitated state, trying to locate Poins and the stolen horse. Falstaff is planning a highway robbery, while Prince Henry and Poins are planning to rob Falstaff in turn. 48 S Hawes, ‘Example of Virtue’. For the full text see, eg, JM Berdan, Early Tudor Poetry (New York, Macmillan, 1931) 43. 49 Stage directions in square brackets are in the original.

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Shakespeare’s Equity FALSTAFF: I am accursed to rob in that thief’s company; the rascal hath removed my horse and tied him I know not where. […] A plague upon’t when thieves cannot be true one to another! …(2.2.8−9, 19) … PRINCE HENRY: Ned, where are our disguises? POINS: Here, hard by, stand close. (2.2.53−4) [Exeunt Prince Henry and Poins] … Enter Travellers … THIEVES: Stay! ... TRAVELLERS: O, we are undone, both we and ours for ever. FALSTAFF: Hang ye, gorbellied knaves, are ye undone? No, ye fat chuffs, I would your store were here! On, bacons, on! What ye knaves? Young men must live. You are grand-jurors, are ye? We’ll jure ye, I’ faith. Here they rob them and bind them. [Exeunt.] Enter the Prince and Poins PRINCE HENRY: The thieves have bound the true men. Now could thou and I rob the thieves, and go merrily to London, it would be argument for a week, laughter for a month and a good jest for ever. POINS: Stand close. I hear them coming. [Enter the Thieves again] FALSTAFF: Come, my masters, let us share, and then to horse before day. An the Prince and Poins be not two arrant cowards, there’s no equity stirring. There’s no more valour in that Poins than in a wild duck. PRINCE HENRY: Your money! POINS: Villains! (2.2.58, 62−74) As they are sharing, the Prince and Poins set upon them. They all run away leaving the booty behind them.

The reference to equity (2.2.71) is the subject of an entire book: Falstaff and Equity: An Interpretation.50 The author, Charles E Phelps, argues that Falstaff is referring to equity not merely in an extra-legal sense (what Phelps calls the ‘Bible sense’)51 but that he is also referring to ‘the equity of the court of chancery’.52 A 50

Phelps, Falstaff and Equity: An Interpretation, above n 9. Ibid at 11. He cites Isaiah 59:14, which in the King James’ version reads ‘And judgment is turned away backward, and justice standeth afar off: for truth is fallen in the street, and equity cannot enter’ (at 10, fn 1). 51

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Falstaff and Equity – a Reinterpretation large part of the book is devoted to proving that Shakespeare had an intense personal interest in chancery matters at the time the play was written (1596–97) and to establishing that there was a widespread interest in the idea of equity at the time because of the contemporary case of Throckmorton v Finch53 – a very significant decision on the proper limits of the chancery jurisdiction. Throckmorton’s servant had been robbed on the way to pay rent due to the Queen’s tenant from his master. Throckmorton paid the arrears late and the Queen acquitted him. Subsequently though, the Queen purported to sell the land to Sir Moyle Finch free of Throckmorton’s lease. Finch issued proceedings to eject Throckmorton. The Exchequer Chamber held for Finch and Throckmorton appealed to Lord Chancellor Ellesmere, but the Queen desired the matter to be tried by ‘all the judges of England’.54 On 28 May 1597, the Lord Chancellor duly made an order to that effect. At the trial, the judges held that Throckmorton’s appeal to the chancellor had been illegal, under the Statute of Premunire (27 Edw III c 23), a result which gave Finch possession. There is a great deal of fine scholarship in Phelps’ book, but the focus is decidedly on the narrow chancery signification of the reference to equity. The fact that Throckmorton v Finch began with a robbery is mentioned,55 but Phelps does not connect this to the dramatically significant fact that Falstaff ’s reference comes in the midst of a highway robbery. Indeed, the wider dramatic and symbolic significance of Falstaff ’s reference to equity barely emerges from the legal history. Falstaff ’s reference to ‘equity’ is magnificently subversive and sardonically humorous because he is the exact opposite of equity as Shakespeare conceives it.56 For Shakespeare, equity is the virtue that places a prince upon his father’s throne, but here it is appealed to by the very man most likely to prevent Prince Hal from ascending to the throne. When Falstaff appeals to equity to vindicate his false assertion that the future King Henry V is an ‘errant coward’, he produces an almost perfect inversion of the association between the virtue of equity and the natural right of a prince. In the midst of a highway robbery, the outlaw Falstaff appropriates the royal virtue of equity from its rightful owner, Prince Hal, only to be immediately robbed by the Prince himself. It is a commonplace that the character of Shakespeare’s Falstaff has much in it of the figure of ‘Vice’ or ‘Iniquity’ who figured in medieval ‘morality’ plays. Prince Hal expresses the connection when he refers to Falstaff as ‘that reverend vice, that grey iniquity’ (I Henry IV, 2.4.331). Likewise, in Richard III, King Richard – whom Shakespeare portrays along the lines of a pantomime villain – likens himself to ‘the formal Vice, Iniquity’ (3.1.82).57 The identity of iniquity with vice and the connection 52

Ibid at 11. (1597) 21 Eng Rep 576. 54 Coke 4 Inst 86. 55 Above n 9 at 41. 56 For an earlier version of the argument that follows, see G Watt, ‘Falstaff and the Highwaymen: Equity as Outlaw’ (2008) 1 Pólemos 47–66. 57 See later in this ch at 213. 53

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Shakespeare’s Equity between vice and formality in the person of a king creates a palpable sense of equity’s absence – and of course Richard’s villainy was precisely that of subverting the equity which guarantees a prince’s succession to the royal throne. Falstaff is likewise the very form of vice because he is so utterly subversive of proper form. Equity acts to resist the subversion of substance by form, but when Falstaff acts it is simply to subvert form – and that is quite a different thing. His very name turns the reliability of a staff into a falsehood. Equity moderates extremes, but Falstaff considers moderation to be a vice – he prefers ‘any extremity rather than a mischief ’ (The Merry Wives of Windsor, 4.2.50). His contempt for proper form extends to the point of deriding the travellers for being simultaneously ‘knaves’ and ‘grand-jurors’. Yet it is Falstaff who makes himself all the more a knave because he perverts the outward form and manners of a knight. The portrayal of Falstaff unhorsed adds to the message as it adds to the humour. Falstaff unhorsed is Falstaff stripped of his pretensions to nobility and his pretensions to the ‘royal’ virtue of equity. The unhorsing of Falstaff also disjoints the chivalric image of rider and horse which I have argued is an ideal representation of equity’s ‘stirring and steering’ relationship to law.58 It was only a few years before I Henry IV was written that William West used the image of equity as a bridle in his Symboleography.59 When the Prince is crowned King, his first act is to banish Falstaff through the agency of the Lord Chief Justice.60 Henry thereby removes the disguise from his nobility and fittingly rebukes Falstaff, who had said, ‘Let us take any man’s horses. The laws of England are at my commandment. Happy are they which have been my friends, and woe unto my Lord Chief Justice!’ (II Henry IV 5.3.108–09). There is another reading of Falstaff ’s appeal to equity which cannot be ignored. It is a cynical and troubling reading. It is the possibility that equity in the mouth of a rogue is equity in its proper place.61 If equity really is a ‘roguish thing’, as John Selden famously argued,62 equity is Falstaff ’s native tongue. This reading would extend to pointing out that King Lear’s reference to equity is delusional,63 that it is ‘down-trodden’ according to King Philip64 and ‘exiled’ according to the Duke of Gloucester.65 However, we must reject such a reading. First, because Falstaff ’s reference to equity succeeds comically because it is a typical Falstaffian perversion of virtue; and secondly, because Shakespeare wants his audience to

58

See ch 5 at 103−4. 1 Henry IV was probably written 1596−7; The two parts of Symboleography were published in 1590 and 1594. See ch 5 at 103. 60 King Henry IV, pt II Act 5 scene 5. See EZ Boris, Shakespeare’s English Kings, the People, and the Law (Rutherford, Madison, Teaneck, Fairleigh Dickinson University Press, 1978) 221. 61 Twice in I Henry IV Falstaff says ‘I am a rogue, if…’. He did not intend it to be a confession, but it will serve for one. 62 Table Talk of John Selden, compiled by Richard Milward (ed F Pollock) (London, Selden Society, 1927), 43. 63 King Lear Act 4 scene 6. 64 The Life and Death of King John, Act 2 scene 1. 65 King Henry VI, Part II, Act 3 scene 1. 59

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Equity Stirring lament the fact that equity is ‘exiled’ and ‘down-trodden’, not to celebrate or to affirm it. As soon as Falstaff finishes the line in which he claims that there’s no equity stirring, the Prince stirs. The suddenness of the Prince’s demand for ‘Your money!’ (so sudden, it appears before the stage direction ‘As they are sharing, the Prince and Poins set upon them’) suggests that the Prince is stirring not only in sport, but with righteous indignation at Falstaff ’s insult and with a hasty passion to undo Falstaff ’s wrongdoing and wrong speaking. Shakespeare could have given no clearer clue to his intention to associate equity with virtue and to associate equity with the Prince.66 It was a clue that some of Shakespeare’s contemporary playwrights seized on. In The Famous Victories of Henry Fifth, one of Shakespeare’s sources, the character of Falstaff was named Sir John Oldcastle, but Shakespeare dropped the name of Oldcastle, apparently due to pressure from the descendants of the real Sir John. When Anthony Munday, Michael Drayton, Robert Wilson and Thomas Hathway wrote their own play, The Life of Sir John Oldcastle,67 they took the politic course of portraying Sir John in a more favourable light. For present purposes their play is notable for a lengthy allusion to Shakespeare’s account of the Gadshill robbery: SIR JOHN OLDCASTLE: Stand true-man says a thief68… come, come, give me the money you have, dispatch, I cannot stand all day.69 KING: Well, if thou wilt needs have it, there ’tis: just the proverb, one thief robs another…Falstaffe the villaine is so fat, he cannot get on’s horse, but methinks Poines and Peto should be stirring here abouts.70

The playwrights have clearly understood Shakespeare’s intention to identify equity with Prince Henry. In I Henry IV the adjective ‘stirring’ is applied to equity; in Sir John Oldcastle it is applied to the person of Poins, and to Peto − who in this scene is the substitute for Shakespeare’s Prince Hal.

Equity Stirring The general doctrine of law in Shakespeare’s day, as it appears from Coke on Littleton and other contemporary sources, was a doctrine which emphasised the virtue of law in its unchanging state. In a small gem of a book on Shakespeare’s familiarity with legal maxims,71 the author, WL Rushton, provides the following succinct summary of common lawyers’ traditional opposition to innovation: 66

See ch 7 at 231, fn 7. A Munday, M Drayton, R Wilson and R Hathwaye, The First Part of the true and Honorable Historie of the Life of Sir John Oldcastle (London, Thomas Pavier, 1600). 68 Malone Society Reprints, The Life of Sir John Oldcastle (Chiswick Press, 1908) line 1365. 69 Ibid at lines 1380–81. 70 Ibid at lines 1382–86. There is a further reference to Falstaff at lines 1418–19. 71 WL Rushton, Shakespeare’s Legal Maxims 2nd edn (Liverpool, Henry Young & Sons, 1907). 67

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Shakespeare’s Equity Omnis innovatio plus novitiate perturbat quam utilitate prodest (2. Bulstr. 388); – every innovation occasions more harm and derangement of order by its novelty, than benefit by its abstract utility….The judges say in one book, ‘We will not change the law which always hath been used’; and another saith, ‘It is better that it be turned into a default than the law should be changed, or any innovation made’.72 (Co. Litt.282b)

It is this attitude, together with the economic utility of disposing of as many cases as possible in the shortest judicial time, which produces the doctrine of precedent –known more formally as the doctrine stare decisis (‘to stand by things decided’). Rushton sets out the maxim in full: ‘Stare decisis et non quieta movere – to stand by things as decided, and not to disturb those things which are tranquil’.73 This sounds pacific and quiescent, but the waters of the law stagnate when they are still. Equity supplies a stream to stir up what has settled down. It is this stream that keeps the law alive. Why did the authors of Sir John Oldcastle repeat the association which Shakespeare had made between ‘equity’ and ‘stirring’? What is it that made that association so memorable and pleasing? The answer lies, at least in part, in the fact that Shakespeare’s phrase ‘equity stirring’ translates an ubiquitous rhetorical theme – that of ‘moving mercy’ – into the more particular language of equity. In Thomas Wilson’s The Arte of Rhetorique (1553) there is a section headed ‘Of moviuyng pitie, and stirryng men to shewe mercie’.74 Munday clearly had the same rhetorical connection in mind when he wrote The Downfall of Robert Earl of Huntingdon (1601), for at one point King John receives a supplication and asks ‘dost thou thinke there is one moving line to mercie here?’.75 It is reasonable to think that the established rhetorical connection between moving and stirring on the one hand and mercy and equity on the other caused Shakespeare’s reference to ‘equity stirring’ to lodge in the minds of Munday and his co-authors of Sir John Oldcastle. Shakespeare was not the first to connect equity to emotive rhetoric. It was no doubt the affective impact of equity which led Athenian rhetoricians to favour ‘blunt opposition of epieikeia and law’.76 The essence of equity is, as I have argued in previous chapters, to move formal stasis. The word ‘stirring’ evokes this motive quality. I have also argued that equity is poetic in that it moves the unfeeling abstract state of law towards that which is tangible and stirs feelings. Equity is in that sense not merely motive, but emotive. The celebrated jurist Christopher St German (who, incidentally, was born almost exactly one century before Shakespeare in another part of Warwickshire)77 attaches the name ‘sinderesis’ to the 72

Ibid at 17–18. Ibid at 17. 74 Folio 34. 75 A Munday, The Downfall of Robert Earl of Huntingdon (Oxford University Press, Malone Society Reprints, 1964) lines 1698–99. 76 C Carey, ‘Nomos in Attic Rhetoric and Oratory’ (1996) 116 The Journal of Hellenic Studies 33–46, 42. 77 In the village of Shilton, around 1460. 73

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To Catch and Keep the Conscience of the King emotive, affective aspect of equity: sinderesis, he says, is ‘called by some men the law of reason, for it ministreth the principles of the law of reason, the which be in every man by nature, in that he is a reasonable creature’ and ‘sinderesis is a natural power of the soul, set in the highest part thereof, moving and stirring it to good, and abhorring evil’78 (emphasis added). Equity stirs the law, but sinderesis is the human emotion and the ethical spirit which moves and stirs us towards equity. Sinderesis is ‘equity-stirring’.

To Catch and Keep the Conscience of the King Shakespeare explores equity to great effect through the dialogic oppositions he creates between his kings and their counsellors – including Henry V’s Archbishop of Canterbury and King Lear’s fool.79 For Shakespeare, equity is the justice by which a monarch is established on the throne, but it is equity as conscientious restraint of royal power which determines the justice of their reign. Shakespeare shows that bad kings ignore the conscientious restraint of power. His most villainous king, Richard III, scorns conscience and favours law in the form of force of arms: ‘conscience is a word that cowards use, /Devised at first to keep the strong in awe. / Our strong arms be our conscience, swords our law’ (5.3.312–14). Shakespeare unhorses this ‘formal vice, Iniquity’ just as he unhorsed Falstaff – ‘that reverend vice, that grey iniquity’ (I Henry IV, 2.4.331). The message is clear: the king who will not bridle his own power with conscience is not fit to bridle the power of a horse, let alone to steer the state. Richard learns the lesson of conscientious restraint, if he ever truly learns it, too late: Give me another horse! Bind up my wounds! Have mercy, Jesu! – Soft, I did but dream. O coward conscience, how dost thou afflict me! (5.3.181–83) …. My conscience hath a thousand several tongues, And every tongue brings in a several tale, And every tale condemns me for a villain. (5.3.197–99)

After the death of Queen Elizabeth and his accession in 1603, King James granted Shakespeare’s company a patent to perform and they changed their name from ‘The Chamberlain’s Men’ to ‘The King’s Men’ in his honour. W Nicholas Knight suggests that Shakespeare then proceeded, by means of his plays, to give ‘lessons in equity’80 to England’s new king. In a sense that is true, provided we realise that Shakespeare was not didactic – he never intended to make a technical point of 78 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England (London, Treverys 1530) (revised reprint, London, Atkins, 1687) ch 13. 79 See ch 2 at 54. 80 This description is taken from Knight, Shakespeare’s Hidden Life, above n 28 at 232.

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Shakespeare’s Equity law or equity; the point was always drama. Knight is simply acknowledging that King James was relatively unfamiliar with the peculiar nature of chancery equity in English law (even though he was deeply conversant with classical and biblical notions of equity)81 and that, between Christmas 1604 and Lent 1605, he saw numerous performances of Shakespeare’s major ‘equity’ plays. We have already noted that King James saw the first recorded performance of Measure for Measure. That was on St Stephens’ Night (26 December) 1604. Two days later he saw a performance of The Comedy of Errors (‘The plaie of Errors’). On 7 January 1605, the King saw Henry the Fifth and a few weeks later, on Shrove Sunday 1605, he saw a performance of The Merchant of Venice (and he commanded a second performance on that Shrove Tuesday). It was after this season of performances, so it is thought, that Shakespeare started to write another of his ‘equity’ plays: King Lear. Every one of these plays is in some way concerned with individuals’ abusive reliance on formal law. How appropriate, then, that they were performed before King James, who considered himself to be the divinely ordained personification of absolute legal power. Hamlet’s line: ‘The play’s the thing / Wherein I’ll catch the conscience of the king’ (2.2.536–37) begins to look like Shakespeare’s personal philosophy.

The Merchant of Venice This play’s reputation as a study in equity is no doubt in large part attributable to Portia’s famous speech on the quality of mercy, where she opposes mercy to Shylock’s plea for strict Justice in the ‘strict court of Venice’ (4.1.204). It is not clear whether Portia is appealing to Christian mercy, which is forgiveness extended regardless of desert, or Senecan clemency, which is rational indulgence closer to equity.82 The court setting would suggest the later, but the theological rhetoric is more suggestive of the former. The more important point is that, whichever type of mercy she exhorts in Shylock, she herself shows none to him. Her speech is rhetorically powerful, but ultimately insincere. The evidence for this is the last line of her mercy monologue where she gives Shylock all the encouragement he needs to persist in his pursuit of strict justice. The line is: ‘if thou follow, this strict court of Venice / Must needs give sentence ‘gainst the merchant there’ (4.1.204–05). Portia’s rhetorical eulogy to mercy is undermined because she immediately assures Shylock that he will succeed if he continues on his present course. Portia then traps Shylock by applying the law even more strictly than he himself had applied it. Portia’s opening dialogue with Nerissa foreshadows the rhetorical trick that she will play on Shylock. Nerissa trots out 81

As the author of Basilikon Doron (see ch 2 at 73) and the patron of the ‘Authorised’ 1611 Bible. On ‘rational’ equity contrasted with ‘non-rational’ mercy see S Magedanz, ‘Public Justice and Private Mercy in Measure for Measure’ (Spring 2004) 44(2) Studies in English Literature 1500–1900 317–32. 82

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The Merchant of Venice the Aristotelian notion that it is happy ‘to be seated in the mean’ (1.2.5), but it is just rhetorical cant, as Portia’s response reveals: ‘good sentences, well pronounced’, she says. Having recited the Aristolelian maxim, Nerissa then provides the first clue to Portia’s forthcoming failure to abide by it. She states that the maxim ‘would be better if well followed’ (1.2.8). Portia takes up the theme, when she admits that she ‘can easier teach twenty what were good to be done, then be one of the twenty to follow mine own teaching: the brain may devise laws for the blood’ (1.2.12–13). A law for the blood is, of course, precisely what her brain devises to undo Shylock – despite her fine rhetoric of mercy. This is not to say that the content of Portia’s ‘mercy monologue’ is unreliable – far from it. There is a truth in her words, even if she does not live up to it. Of special interest to us is the fact that her speech includes points of resemblance between her own brand of mercy and our idea of equity. For one thing, it is mercy in a legal setting – and it is mercy associated, as chancery equity is associated, with the prerogative of the monarch. For another, the idea of ‘seasoning’ justice suggests the sort of pragmatic moderation that one associates with equity or Senecan clemency,83 rather than with ‘non-rational’ Christian mercy. Christian mercy would utterly forego and forgive a strict plea of justice, whereas ‘seasoned’ justice is a pill which, though made more palatable, must still be swallowed. The equitable character is absent from the play, but there is no shortage of inequitable characters who insist on, or indulge, their own rights and powers at the expense of others: Jessica exercises her power to leave her father, and Lorenzo exercises his power to take her; Portia and Antonio use the external form of a gift to Bassanio (of a ring and an interest-free loan, respectively) to disguise a substantial taking of Bassanio, for whose affection they compete; Nerissa and Gratiano – seconds to Portia and Bassanio respectively – had the potential to restrain their principals’ excesses, but instead spur them on. Then there is Shylock. Shakespeare rescues Shylock from the medieval stereotype of the Jew only to allow him to descend from his humanity into the very picture of one who is akribodikaios, a ‘stickler for the law’. We saw in chapter five that the person who is dikaios acts rightly by the law, whereas the person who is akribo-dikaios enforces rights too strictly by the law. Shylock is over-righteous in this sense and his downfall is to receive excessive ‘justice’ in return. Portia goads him: ‘thou shalt have justice more than thou desirest’ (4.1.321). As soon as Shylock enters the so-called ‘court of justice’, the Duke invites him to ‘stand before our face’ (4.1.17) and later Shylock declares ‘I stand here for law’ (4.1.144) (emphasis added). Law is, as we saw in chapter four, established on the metaphor of standing, so here we have Shylock emphatically standing for standing with standing. He is intransigent. He is also tenaciously insistent on the strict performance of his will, precisely because his daughter by her self-will has written herself out of his will 83 Which John Calvin identified with equity: FL Battles and AM Hugo (eds and trans), Calvin’s Commentary on Seneca’s ‘De Clementia’ (Leiden, E J Brill, 1969) (for the Renaissance Society of America) 137.

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Shakespeare’s Equity (the contrast with Portia’s capricious obedience to her father’s will and the capricious nature of her father’s will is conspicuous). Consider the varied repetition of the senses ‘I will’ and ‘I will not’ ‘ in the following speech, which Shylock offers in response to Antonio’s pre-trial plea for mercy: I’ll have my bond. I will not hear thee speak. I’ll have my bond and therefore speak no more. I’ll not be made a soft and dull-eyed fool, To shake the head, relent, and sigh, and yield To Christian intercessors. Follow not, I’ll have no speaking. I will have my bond. (3.3.13–17)

The speech duplicates the pair ‘shake’ and ‘relent’ in the form ‘sigh’ and ‘yield’. Through this duplicatio, Shylock emphasises his resistance to any softening influence. Antonio knows that nothing can persuade Shylock to relax his stance. Antonio’s first long speech in the court scene contains a subtle gradatio from heavenly ‘prayer’ to a ‘thing most hard’ which Shakespeare uses to emphasise Shylock’s descent into what the Duke calls a ‘stony adversary’ (4.1.4). Note how the speech progresses by degrees from transcendent ‘prayer’ to more worldly ‘thought’ to passive ‘standing’ to active ‘bidding’ to insistent ‘forbidding’ until finally we must contemplate the doing of ‘any thing most hard’: I pray you think you question with the Jew: You may as well go stand upon the beach And bid the main flood bate his usual height, …. You may as well forbid the mountain pines To wag their high tops and make no noise When they are fretted with the gusts of heaven. You may as well do any thing most hard As seek to soften that – than which what harder? – His Jewish heart… (4.1.71–81)

Only Portia outdoes Shylock in reliance on strict form – this is not too surprising when we consider that at one point her fate is bound up in her formal portrait and later she is disguised in the form of a lawyer. She takes akribodikaios to its furthest extreme by insisting that a contract for a ‘pound of flesh’ is a contract for exactly a pound – not a hair’s weight more or less – and not a drop of blood. This is the polar opposite of an equitable reading. Nothing is implied beyond the strict letter of the law. The Duke suffers a momentary lapse into mercy after judgment and before sentence, when he says to Shylock: ‘I pardon thee thy life before thou ask it’ (4.1.376). This turns out to be rhetoric as shallow as Portia’s. In his very next speech, the Duke withdraws his mercy when he confirms Antonio’s request that Shylock should become a Christian: ‘He shall do this, or else I do recant / The pardon that I late pronouncèd here’ (4.1.378–79).

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The Merchant of Venice RS White is quite correct when he observes that ‘Shakespeare is unequivocally ruling out the possibility of a system of equity in this context’.84 Ernest Schanzer, in contrast, argues that Shylock received equity because he was allowed to keep his life and half his possessions,85 but such mitigation was made conditional on his conversion to Christianity – there is no equity in such compulsion. The forced conversion above all other factors shows that Shylock did not even receive the ‘benefit’ of strict law and casts doubt on the opinion of FS Boas, who read The Merchant of Venice as a study in the justice of ‘measure for measure’.86 Did Shylock in fact submit to the formal process of ‘conversion’? We do not know, but if he feigned compliance he would have consoled himself with the fact that his true faith remained untainted by the formal ritual. If he refused to go through with it, his substance would indeed have triumphed over form. The Merchant of Venice is not a study in equity; it is a study in the absence of equity. Equity is nowhere to be found, whether in substance or form. The technical language of chancery equity makes an occasional appearance – Portia alludes to the doctrine of ‘satisfaction’,87 in addition to the references to ‘injunction’, ‘conversion’, ‘election’ and ‘performance’ noted earlier – but the play contains no express reference to ‘equity’ or ‘equitable’. The language of conscience is worse than absent: it is turned into a joke. The word ‘conscience’ appears ten times in the play and all ten appear in an anti-Semitic soliloquy by the clown figure Lancelot Gobbo.88 Perhaps Shakespeare chose Venice as the location for this most legal of plays because of the republic’s long-standing reputation for ‘equitable administration of justice’,89 acquired because ‘[n]obles and commoners had equal standing in court’,90 and yet he demonstrates that even in Venice some are more equal than others. Perhaps he knew that Venice also had a reputation for the inquisition of Jewish conversos.91 The Merchant of Venice is not a study in true equity and it is not even a study in the juridical equity of the chancellor’s court. Mark E Andrews considered the courtroom scene in Act IV to be a precise replica of English trial procedure at common law and in chancery, but the play was written almost two decades before The Earl of Oxford’s case and the chancellor’s triumph over common law. Keeton, 84 RS White, Natural Law in English Renaissance Literature (Cambridge, Cambridge University Press, 1996) 165. 85 E Schanzer, The Problem Plays of Shakespeare: A Study of ‘Julius Caesar,’ ‘Measure for Measure,’ ‘Antony and Cleopatra’ (London, Routledge & Kegan Paul, 1963) 119, fn 1. 86 Below n 101. 87 ‘He is well paid that is well satisfied; / And I, delivering you, am satisfied /And therein do account myself well paid’ (4.1.424–26). 88 The fact that the unreliable Gobbo is given this anti-Semitic speech confirms two suspicions: the first is that the anti-Semitism was included for the groundlings; the second, crucially, is that Shakespeare does not agree with the anti-Semitism or intend it to be attractive. 89 FC Lane, Venice, A Maritime Republic (Baltimore, Johns Hopkins University Press, 1973) 271, 405. 90 Ibid at 271. 91 See B Pullan, The Jews of Europe and the Inquisition of Venice 1550–1670 (London, New York, IB Tauris, 1997) (paperback following 1983 original).

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Shakespeare’s Equity an expert in the English law of equity and trusts, is more accurate. He suggests that the drama would have been enhanced when it was first performed by the very fact that there was at that time no guarantee that equity would succeed in coming to the rescue92 (the uncertainty of outcome is further heightened by setting the play in Venice, rather than in England). To the extent that Shakespeare is concerned with law in this play, he is not concerned with chancery law but with the emerging merchant93 and maritime law.94 Shakespeare was not providing a technical lesson in chancery equity,95 but he was issuing a philosophical caution, in Aristotelian mode, against the tragic error of strict legal formalism.

Measure for Measure The very mercy of the law cries out Most audible, even from his proper tongue, ‘An Angelo for Claudio, death for death!’ Haste still pays haste, and leisure answers leisure, Like doth quit like, and measure still for measure. (5.1.421–25)

The title of the play is taken from the Gospel of St Luke as it appears in the Geneva Bible (1560) which was the English translation familiar to Shakespeare. The thirty-eighth verse of chapter six of the Gospel ends with these words: ‘for with what measure ye mette, with the same shall men mette to you again’. ‘Mette’ or ‘mete’ means to measure (from the Anglo Saxon metan). Shakespeare has the same biblical verse in mind when the Duke passes judgment on his deputy Angelo (who enforced the law with zealous rigour during the Duke’s absence from the seat of power): ‘If his own life answer the straitness of his proceeding, it shall become him well: wherein if he chance to fail, he hath sentenced himself ’ (3.1.437–38). The first known performance of the play entertained King James I at court on 26 December 1604 but three years later the concepts of mete and measure returned in a way which certainly would not have entertained his good humour. The Case of Prohibitions (‘Prohibitions del Roy’) (1607) was a judicial statement by Sir Edward Coke in which he purported to prohibit the King from sitting as a judge. As Measure for Measure cautioned against personal bias in 92

Shakespeare’s Legal and Political Background, above n 36 at 137. Including the application of the ‘Law Merchant’ (lex mercatoria) in urban tribunals (see BJ Sokol and M Sokol, ‘Shakespeare and the English Equity Jurisdiction: The Merchant of Venice and the two texts of King Lear’ (1999) 50 The Review of English Studies 417–39, 428; and BJ Sokol, ‘The Merchant of Venice and the Law Merchant’ (1992) 6 Renaissance Studies 60–67). 94 I have identified a resemblance between the Antonio-Shylock bond and a contemporary maritime security (not the same thing as insurance) called the ‘bottomry bond’ (G Watt, ‘The Law of Dramatic Properties in The Merchant of Venice’ in Raffield and Watt (eds), Shakespeare and the Law, above n 3 at 237–51, 247–49). On the related topic of maritime insurance in the play, see L Wilson, ‘Drama and Marine Insurance in Shakespeare’s London’ in C Jordan and K Cunningham (eds), The Law in Shakespeare (Basingstoke, Palgrave Macmillan, 2007) 127–42. 95 Knight, Shakespeare’s Hidden Life, above n 28 at 232: ‘Shakespeare gave the King seven lessons in equity’. 93

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Measure for Measure public judgment, so The Case of Prohibitions emphasised that a good judge does not judge according to instinct, but is an expert trained in the application of the law. Coke stated that the law is ‘the golden mete-wand and measure to try the Causes of the Subjects’.96 The main sources for Shakespeare’s Measure for Measure (1604) were George Whetstone’s play The History of Promos and Cassandra (1578)97 and the narrative version of the same in Whetstone’s Heptameron (1582). Whetstone had based his work on a tale appearing in Giraldi Cinthio’s Hecatommithi (1565). It is possible that Shakespeare had also read (in the original Italian)98 the dramatised reworking of the story in the play Epitia (1583).99 In Whetstone’s Promos and Cassandra, Lord Promos is the acting head of state and Phallax, an official advisor to Promos, plays the figure of ‘Iniquity’ or ‘Vice’. Phallax is said to operate by ‘extremity’ and ‘against all equity’ (2.1.5) and says of himself that he has been a lawyer too long not to be able to ‘wrest the law from right to wrong’100 (1.3.6). In Measure for Measure, Shakespeare alters the roles to present relationships more representative of equity in the English system of justice. FS Boas wrote that in Measure for Measure, ‘the fanatical worship of the letter is shown to conflict with the genuine principle of equity, and we realize that codes and charters may become a curse instead of a blessing to society’.101 The acting ruler of the state, Angelo, is made to personify the specific vice of abuse of law and legal power; and the official advisor to Angelo, Escalus, is made a virtuous figure who attempts to restrain Angelo’s extremity thus ‘Escalus illustrates equity’.102 Shakespeare might have been aware of the similarly equitable figure of the secretary (a chancery scribe, we might say) in Cinthio’s Epitia, who spoke out against the strict enforcement of the law.103 When Angelo states his intention strictly to enforce the ‘sleeping statute’104 against Claudio, Escalus attempts to intervene by appealing to the possibility that in other circumstances Angelo might have found himself

96

Edward Coke CJ, Prohibitions del Roy (Michaelmas, 1607) 5 Jac I; 12 Co Rep 63, 65. George Whetstone, The right excellent and famous historye, of Promos and Cassandra deuided into two commicall discourses etc (London, printed by John Charlewood for Richarde Jones, 1578). 98 N Shaheen, ‘Shakespeare’s Knowledge of Italian’ in S Wells (ed), Shakespeare Survey: Playing Places for Shakespeare vol 47 (Cambridge, Cambridge University Press, 2002) 161, 169. 99 Epitia was written around the tenth anniversary of Cinthio’s death. 100 Quotations are from the text of Promos and Cassandra in G Bullough (ed), Narrative and Dramatic Sources of Shakespeare vol II (London, Routledge & Kegan Paul, 1958) 442–513. 101 FS Boas, Shakespeare and his Predecessors (London, John Murray, 1896) 368. 102 JW Dickinson, ‘Renaissance Equity and Measure for Measure’ (Summer 1962) 13(5) Shakespeare Quarterly 287–97, 297. See, to like effect, W Dunkel, ‘Law and Equity in Measure for Measure’ (Summer, 1962) 13(3) Shakespeare Quarterly 275–85, 281: ‘there was the concept of equity, representing the king’s conscience, manifest in the Lord Chancellor’s determination of causes with the Masters in Chancery. Escalus by position and experience appears to be representative of the concept that on occasion conditions require relief from the letter of the law’. 103 Dickinson, ibid. 104 A pun on two facts: that it prohibits fornication and that it has not been enforced for many years. 97

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Shakespeare’s Equity infringing the law which he now enforces so strictly. The implicit warning to Angelo is that one day he might find himself judged as he now judges:105 Let but your honour know Whom I believe to be most strait in virtue That, in the working of your own affections, Had time cohered with place or place with wishing, Or that the resolute acting of your blood Could have attained th’effect of your own purpose, Whether you had not, sometime in your life Erred in this point which now you censure him, And pulled the law upon you. (2.1.9–17)

Duke Vincentio informs us that ‘Lord Angelo is precise’. This is the only play in which the word ‘precise’ is used to describe a character, and Angelo is the only character with whom that description approaches an identity. ‘Precise’ is the best English translation of the Greek ‘akribeias’, which we have seen is the very factor that, combined with the attribute of being ‘legally accurate’ (‘dikaios’), produces the character of akribodikaios that is opposite to the equitable character of epieikeia. Escalus’ credentials as representative of English equity include the fact that he was appointed to act as Angelo’s ‘secondary’ even though he was ‘first in question’ (1.2) Equity in English law is likewise first in status, but operates in a supervisory, and in that sense secondary, position. The metaphor of the horse and rider is most useful here, since it depicts the horse as the main force but one that is subject to correction by the ‘lesser’ force of the rider – the rider being secondary in strength but first in status.106 When Escalus says that some ‘run from brakes of vice, and answer none’ (2.1.42) his words are profoundly correspondent with the nature of equity. Equity is a ‘brake on vice’ – and the character of equity is shown in the powerful when they submit their power to be bridled. Escalus also shows his equity in the legal judgment he passes on the miscreants Froth and Pompey (2.1). His judgment is markedly restrained compared with Angelo’s rigorous enforcement of the law in Claudio’s case.107 The bawd Mistress Overdone overdoes it though, and feels the full force of punishment for her continuing offences, She attempts to flatter Escalus that he ‘is accounted a merciful man’, but he knows that too much mercy in a judge is as tyrannical as too much rigour: ‘Double and treble admonition, and still forfeit in the same kind? This would make mercy swear and play the tyrant’ (3.2.393–94). There is, as Shakespeare wrote in III Henry VI, such a thing as ‘too much lenity / And harmful pity’ (2.2.9–12). Escalus has a natural instinct for justice. As the Duke says to him: ‘…The nature of our people, / Our city’s institutions, and the terms / For common 105 Compare 2 Henry VI where Buckingham says to The Duke of Gloucester: ‘Thy cruelty in execution / Upon offenders, hath exceeded law, / And left thee to the mercy of the law’ (1.3.122–24). 106 For further consideration of this metaphor see ch 3 at 103. 107 Dickinson, ‘Renaissance Equity and Measure for Measure’, above n 102 at 287–97, 296.

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Measure for Measure justice, you’re as pregnant in / As art and practice hath enrichèd any / That we remember . . .’ (1.2.9–12). The ‘common justice’ to which Escalus is attuned is not common in the undesirable sense of unthinking routine, but in the desirable sense of ‘natural to us all’ – as the metaphor of pregnancy emphasises. It is interesting that natural justice is portrayed in terms of the female attribute of being pregnant. Shakespeare disrupts the stereotype of female equity by attributing the female quality of pregnancy to the male figure of equity. This corresponds to the way in which he cleverly inverts the stereotype of female equity by identifying Portia in a typical way with equity and mercy, only to show in her treatment of Shylock that she is no figure of justice after all. On the Elizabethan stage, a male actor would have performed Portia in the male dress of the lawyer Balthazar, further emphasising how fraught it is to identify the qualities of legalism and equity with either gender exclusively. Escalus is undoubtedly intended to figure equity, but he is a rather ineffectual figure (a fact which arguably makes him an especially accurate representation of equity in its chancery mode). Escalus confides in the Duke (who is at this point disguised as monk): ‘my brother justice have I found so severe that he hath forced me to tell him he is indeed Justice’ (3.1.435–36). Escalus thereby confirms that he has conformed too much to the strict law, as juridical equity might be said to have conformed too much to the routines of general law. He was grieved by Claudio’s suffering, but on three occasions lamented that ‘there’s no remedy’. He even says that Angelo’s severity is ‘needful’ because ‘Mercy is not itself that oft looks so’ (2.1.223–24). It is only when the Duke returns and removes his disguise that Escalus has the courage to criticise Angelo to his face for his ‘lack of tempered judgement’ (5.1.497). Perhaps Shakespeare deliberately intended to show the sometimes ineffectual nature of legal equity in order to emphasise the superior virtue of Christian mercy.108 Whereas equity is reasonable and therefore struggles to influence deeply unreasonable people, Christian mercy is more powerful because – as the Duke says – it is justice ‘against all sense’.109 One can even conjecture that Shakespeare bore a personal grudge against the chancery form of equity (after all, his father had not fared well by it), but such a cynical reading is hard to reconcile with the warmth with which Shakespeare portrays Escalus and King Lear’s fool – two characters with whom institutional equity is identified (impliedly in the case of Escalus, expressly in the case of the fool). Shakespeare’s treatment of both is so genial that he even offers them a seat: the fool is benched in the hovel, and Escalus is invited by the Duke to sit down in Angelo’s place. The final word on Measure for Measure should go to Walter Pater who wrote a deeply insightful reflection on the play in 1874, that singular interstitial year between the Judicature Acts of 1873 and 1875 which marked the end of English 108

Ibid at 287–97, 297. Ibid at 297; and S Magedanz, ‘Public Justice and Private Mercy in Measure for Measure’, above n 82 at 317–32. 109

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Shakespeare’s Equity chancery and the liberation of equity into every court in the land.110 Pater saw in Measure for Measure a study in ‘the very intricacy and subtlety of the moral world’. It teaches us ‘the difficulty of seizing the true relations of so complex a material, the difficulty of just judgment, of judgment that shall not be unjust’.111 Pater expresses the need for just judgment in terms of concern for particular cases and particular people: It is for this finer justice, a justice based on a more delicate appreciation of the true conditions of men and things, a true respect of persons in our estimate of actions, that the people in Measure for Measure cry out as they pass before us.112

Pater’s ‘fine justice’ corresponds to ‘equitable justice’ as I have described it. Pater anticipates, although he does not express it in terms, precisely that connection between equity and poetry which I advanced in chapter four – namely, that both are concerned to translate abstractions into ‘human’, ‘home’ and things that are ‘to hand’ – Pater’s ‘complex material’ and ‘true conditions of men and things’. He says that ‘true justice is dependent on just those finer appreciations which poetry cultivates in us the power of making’.113 He concludes with a challenge to the reader, and himself: ‘what shall there be on this side of it – on our side, the spectators’ side, of this painted screen…what philosophy of life, what sort of equity?’114 It may be that Pater found the answer – as Shakespeare did – in impartiality.115

Shakespeare’s Impartiality In this chapter, and in preceding chapters, we have identified several methods by which Shakespeare challenges abstract formalism in literature, law and life in general. One method is through the naturalistic tendency of his poetry – the tendency to give abstractions a local habitation and a name. JB Priestley conjectured that Shakespeare’s enduring hold on our affections might lie in the fact that he does not try to ‘take us by storm, through the sheer intensity of the unbalanced, the one-sided’, but ‘always leads us home’.116 (I do not mean to promote an outmoded notion of Shakespeare as universal good, but those who are attracted to his works might recognise that one feels at home in them because they invite judgments, but they do not judge.) Another method by which 110 The Supreme Court of Judicature Act 1873 (36 & 37 Vict. c 66) and the Supreme Court of Judicature Act 1875 (38 & 9 Vict. c 77) known collectively as the ‘Judicature Acts 1873–75’. 111 WH Pater, Appreciations with an Essay on Style (London, Macmillan, 1889) 182. 112 Ibid at 183. 113 Ibid at 184. 114 Ibid at 174. 115 GK Chesterton credited Pater with attaining ‘the high-water mark of ... impartiality reached through art’ (The Victorian Age in Literature (London, Williams & Norgate, 1913) 23). 116 JB Priestley, Literature and Western Man: Criticism and Comment of Five Centuries of Western Literature (London, Harper, 1960) 42.

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Shakespeare’s Impartiality Shakespeare challenges abstract formalism is through the dramatic use of counsellor figures to provide conscientious resistance to royal authority. The dramatic power of such dialogues is maintained by Shakespeare’s impartiality. He advocates on both sides, he equivocates, but seldom judges. Shakespeare’s drama presents questions that ‘puzzle the will’ – the sorts of questions which barristers would have mooted at the Inns of Court and which law students still moot today; questions such as ‘did Ophelia commit suicide?’117 Shakespeare explores controversies, but declines to determine them. He leaves his audience to reach a judgment on the questions he poses. This trait is attributable in part to the fact that there is dramatic power when questions are tested but left unanswered; and it is attributable in part to the fact that Shakespeare’s dramas were written and performed in an age of equivocation – when it was commercially and politically expedient to avoid taking sides on issues of religion and monarchy and so forth118 (even assuming that the official censor, the Lord Chamberlain, allowed the playwright to take sides) but Shakespeare’s refusal to judge is mainly attributable to his success in presenting the rich and varied complex of human experience as humanely as possible; a success which could not have been achieved through a dogmatic or didactic approach. Take the relatively mundane, but pertinent, question: ‘did Shakespeare like lawyers?’ We cannot tell. Shakespeare’s treatment of lawyers reveals ‘a lawyers’ melancholy’ – ‘which is politic’.119 Most of the express textual evidence suggests that he did not like lawyers,120 but on the other hand there is the famous line: ‘[t]he first thing we do, let’s kill all the lawyers’.121 The very fact that this line is given to the unattractive rabble-rouser Dick the Butcher – follower of the ‘monstrous rebel’ Jack Cade – makes it testimony in favour of the lawyers. Later in the same play, Shakespeare pays lawyers the tacit compliment of listing them alongside ‘scholars’, ‘courtiers’ and ‘gentlemen’ as Cade’s sworn enemies; and eventually it is not the lawyers who are killed, but Cade himself. Shakespeare’s equivocation extends to having Cade’s supporters describe lawyers as ‘false caterpillars’ (4.4.37). The caterpillar was popular pejorative for a person considered to be a blight on the garden of the commonwealth,122 so here we have the true caterpillars referring to lawyers as ‘false’ caterpillars. We do not know where Shakespeare stands because, like equity, Shakespeare never takes a dogmatic stance, but always makes a moving character.

117 C Sale, ‘The “Amending Hand”’ in Jordan and Cunningham (eds), The Law in Shakespeare, above n 94 at 189–207. 118 I Ward, ‘Terrorists and Equivocators’ (2007) 1(1) Law and Humanities 111–32. 119 As You Like It (4.1.10). 120 Hamlet refers to lawyer’s tricks (5.1.75) and Timon of Athens complains that the lawyer’s voice pleads false title (4.3.163) while King Lear’s fool scorns ‘the breath of an unfee’d lawyer’ (1.4.104) and Mercutio suggests, likewise, that lawyers ‘dream on fees’ (Romeo and Juliet, 1.4.75). 121 II Henry VI pt II (4.2.57). 122 William Shakespeare, King Richard II (2.3.166). It is fascinating that Ellesmere once referred to lawyers in open court as the ‘caterpillars of the commonwealth.’ (LA Knafla, Law and Politics in Jacobean England: the Tracts of Lord Chancellor Ellesmere (Cambridge, Cambridge University Press, 1977) 62).

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Shakespeare’s Equity Shakespeare’s drama, maintained through impartiality, disturbs even the form of individual words. The equivocation of his world view becomes wonderful ambiguity in the word. It has been said that a legal statute cannot talk in two ways at once.123 We have seen that this is not, strictly speaking, true (or that it is only true when one is speaking strictly),124 but what cannot be denied is that the law sees little virtue in ambiguity. In contrast, it is a hallmark of Shakespeare’s genius that he is able to voice so many contrasting perspectives on human experience within so few lines of dramatic text. This dimension of his art was nurtured by a grammar school education in the classical techniques of rhetorical debate; and it thrived in theatre, for the very essence of drama is to establish and explore conflicts and contrasts. (As an essential distillation of dramatic conflict, it is hardly surprising that Hamlet’s line ‘To be or not to be’ is one of the most famous in Shakespeare’s works.) According to James Boyd White good writing is writing ‘two ways at once’.125 In another place, he has written that: There is a side of each of us that wants…to live in a simpler world of statements that are true or false, rules that are just or unjust, poems that are beautiful or ordinary, denying our responsibility to face the uncertainties and tensions with which even the best work – especially the best work – presents us. But this will not do: the best work in each field teaches us otherwise.126

In this respect, the works of Shakespeare are the best teacher. Ian Ward sees ‘a pervasive ambiguity throughout Shakespeare’s work; the constant desire to reinforce some sense of order, coloured by the awareness that such order is not immutable’.127 This expresses very well the sense of equity that I have presented throughout this chapter and this book. It is the sense of equity that combines stasis with motion; homecoming with excursion. Ward had in mind Jonathan Bate’s The Genius of Shakespeare, which identifies ambiguity as a key aspect of Shakespeare’s genius.128 Bate, in turn, finds in William Empson’s Seven Types of Ambiguity a genius insight into that aspect. Empson, he says, is ‘Modernism’s Einstein among literary critics’.129 It is in Empson’s work that we find the following example from Measure for Measure of his ‘seventh type of ambiguity’ (the ambiguity of a word which carries directly opposite meanings). Claudio says of his sister Isabella that ‘In her youth / There is a prone and speechlesse dialect / Such as move men’ (1.3.66). ‘Speechlesse dialect’ is obviously ambiguous, but the word ‘prone’ is less obviously, and therefore more profoundly, so. Empson 123

Powerhouse Retail Ltd v Burroughs [2006] UKHL 13 (HL). See ch 1 for discussion of the ‘equity of a statute’. JB White, The Legal Imagination (Boston, Little, Brown, 1973) 76, 792–93. 126 JB White, ‘Writing and Reading in Philosophy, Law and Poetry’ in M Freeman and A Lewis (eds), Law and Literature: Current Legal Issues Vol 2 (Oxford, Oxford University Press, 1999) 1–20, 20. 127 I Ward, Shakespeare and the Legal Imagination (Cambridge, Cambridge University Press, 1999) 17. 128 J Bate, ‘The Laws of the Shakespearean Universe’ ch 10 in The Genius of Shakespeare (London, Picador, 1997) 302–40. 129 Ibid at 316. 124 125

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Shakespeare’s Impartiality observes that ‘prone’ contains the opposite senses of stasis (‘inactive and lying flat’) and movement (as in ‘tending to’).130 This is literary genius in Shakespeare, and the maintenance of ambiguity between stasis and movement is equity’s genius in the law.

130 W Empson, Seven Types of Ambiguity (London, Chatto and Windus, 1930). Quotations are from the Peregrine Books edition (1961) at 202.

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7 Pretence of Equity [w]e see in contracts and other dealings which daily pass between man and man, that, to the utter undoing of some, many things by strictness of law may be done, which equity and honest meaning forbiddeth. Not that the law is unjust, but unperfect; nor equity against, but above, the law, binding men’s consciences in things which law cannot reach unto. Richard Hooker, Of the Laws of Ecclesiastical Polity (1595)1

A

T THE START of this book I acknowledged that equity is a wandering word and vague in that sense. I have not sought to pin it down (I agree that ‘a vague law does not necessarily represent a deficit in the rule of law’),2 but rather to show how equity has been figured throughout many ages and types of literary art. I have presented some established pictures of equity, including Aristotle’s leaden rule; I have developed some pictures that had lain out of sight or out of favour, such as the rider on a horse and the progress of a river and I have offered some new pictures of my own, including the image of the peregrine bird and the cage. All these pictures elucidate equity’s correction of unduly rigid or routine (unduly literal or lazy) readings of rights and entitlement established by law or social convention. The various pictures of equity are just snapshots of a moving thing, but together they make a slideshow which keeps the sense of equity tangible to the mind’s eye. If we form any picture of equity, it should be a moving picture. We observed in the opening chapter that a definitive explanatory account of equity is neither possible nor desirable, but looking back we can see that a literary account of equity has been able to explain things which non-literary accounts are unable to explain. For one thing, a literary analysis explains why equity can (in Hooker’s phrase) ‘reach unto’ justice beyond the law, whereas the general law cannot. The explanation lies in the fact that general law has a habit or routine of abstraction which tends to take human relations away from the tangible, particular and affective dimension of ‘contracts and other

1 The Works of that Learned and Judicious Divine, Mr. Richard Hooker (book V, ch IX, section 3) (Oxford, 1850) I, 451–52. 2 TAO Endicott, Vagueness in Law (Oxford, Oxford University Press, 2000) 191.

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Pretence of Equity dealings which daily pass between’ us. Equity, in contrast, involves an imaginative and inventive movement away from the abstract back towards the concrete and particular. This discovery leads to a further discovery, namely that distinct aspects of law correspond to distinct literatures: general law is abstract prose, equity is poem. The idea of equity as poem makes no sense, of course, unless we first correct our habitual way of looking at law. We can only see equity’s potential to introduce the humanising benefits of the poetic if we first acknowledge that law is neither pre-ordained by doctrine nor discovered through logical or empirical science but is a contingent and fictional account of human relations. Equity as poem is not easily superimposed on juridical doctrine or legal science, but equity as poem – with all this implies in terms of making the particular tangible and turning language from unfeeling abstraction towards the human and the home – makes perfect sense when we see that general law is prosaic abstraction. This is not a sterile analytical exercise. There is a practical need to ensure that a proper view of law corresponds to a proper view of equity. This practical need is met first and foremost through education. Equity is that which leads us out of our routine ways of reading, so equity is educational in the original etymological sense. True education is important for lawyers: humanely educated law graduates and legal professionals have the potential to be very good for society; and the inhumanely educated lawyer certainly has the potential to be very bad for society. However, education in equity is not only for lawyers. We all resort to judicial rights in a routine way– to some extent this is inevitable in a society conceived in terms of social contract. We are appropriately slow to think in terms of our entitlement to enforce a non-juridical right, such as our right as homeowner to watch a favourite television programme even though guests are visiting – in the non-juridical sphere we are sensible to the fact that there are numerous competing conventions at play (including the conventions of being a polite and attentive host). When it comes to general juridical rights our default position, in contrast, is to assume that we are entitled to enforce them. We might think twice before actually enforcing them, but our first thought is the right to do so. Such thinking is wrong. A right granted by general law is no reliable indication of the justice of the right and it is no guarantee of just entitlement to enforce it. General law can only confer legitimacy in a technical and general sense. It cannot anticipate the nuances of real life. Suppose, for example, that I accidentally reverse my car into your garden wall causing terrible damage to my car and a great deal of distress to passengers in the rear seats. I also dislodge a few bricks from your wall. I have put you to some inconvenience and perhaps to some cost of repair, but should you seek compensation from me? Clearly you are legally entitled to do so. You have the juridical right, but is it right to enforce it in the context of the much more serious harm that the people in the car have suffered? This is an ethical question, but an ethical response may be choked by the endemic culture of entitlement (the attitude that ‘I am entitled to my legal due’) and, in the case of a car crash, by the routine availability of insurance. The untenable equation of legitimate right with 228

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Pretence of Equity just right has somehow become entrenched. It is embedded so deeply in our language that we no longer see it. Thus we routinely talk of ‘injuring ourselves’, even though this is impossible: one can harm oneself or damage oneself, but one cannot injure oneself – one cannot breach a juridical duty to oneself. We have forgotten that self-injury is a figure of speech and, more importantly, we have forgotten that the law’s idea of injury by others is not to be taken literally. The responsibility falls on each one of us to decide in each particular case whether or not to insist upon the law or to depart from the strict legal course on grounds of mercy or charity or because it would be epieikeia. This is all very well, but we still demand ‘what’s the law going to do about it?’ That is the question we cannot resist. ‘What will the law do to me if I do not act with mercy or charity or epieikeia?’ The answer may be ‘very little’. The character of equity which Aristotle and the writers of the New Testament called epieikes is not a character that the law will compel, and English law does not so much insist upon positive equitable behaviour as aim to prevent inequitable behaviour. Even then, juridical equity does not act to restrain straightforward insistence on a legal right – how could it? There can be no ground for judicial restraint of one who is simply dikaios – acting in accordance with their rights. Having said that, the way in which a right is worded or the circumstances in which it arises make a context for the text of the law which might make particular reliance on the law, or a particular reading of the law, appear unduly strict in a particular case. The person enforcing the right is then, as we observed in previous chapters, no longer simply dikaios – but akribo-dikaios (strictly insistent on their rights) and the law will intervene to restrain the enforcement of a right in such a case if the circumstances make enforcement ‘unconscionable’. I suppose we could replace the word ‘unconscionable’ with a more modern equivalent, but the need for the law to exercise critical supervision over, and case by case correction of, its own general scheme would remain. My own view is that the word ‘unconscionability’ is worth retaining precisely because it is a word that lawyers cannot claim to own outright. It straddles the boundary between law and literature beyond the law and therefore keeps the door open for better and broader ideas of justice to wander in. Jurists are expert at making general rules and general exceptions to general rules, but the art of judging particular justice against the face of the rule is not an art in which jurists can claim any monopoly. To retain a language which reflects this fact is to retain a healthy humility in the law. None of this is to suggest that ‘unconscionability’ does an ideal job. ‘Unconscionability’ must be enabled to operate beyond its own routines too. In chapter three I argued for a way in which this might be achieved without risking an excursion too far from the regular law. It is clear that ‘unconscionability’ could do a lot better. It could, for instance, take more account of the defendant’s individual characteristics. The law as presently conceived is overly confident in the equality of the people who are subject to it. It has blindfolded itself with the myth that we are all independent actors with parity of bargaining power. It rarely acknowledges that it should matter to juridical equity that the person against whom a legal right is enforced is especially vulnerable or 229

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Pretence of Equity poor or powerless. Notable exceptions include the protection that in the 1960s was extended to deserted wives3 and in the late 1980s and early 1990s to wives unfairly pressed by their husbands to agree to mortgage their homes for their husbands’ business purposes.4 Dickens says that chancery ‘gives to monied might the means abundantly of wearying out the right’.5 So be it, but when a more powerful or more wealthy party is the aggressor, let the court take this into account. Why should it not be relevant? We have seen that Henry V sought to ensure that the poorer party suffered no harm in his courts.6 Has equality of social wealth progressed so far as to make this an irrelevant consideration? Has our law progressed so far? Keeping in mind the need to ‘reach unto’ better justice – to justice beyond the law – this chapter will offer a concluding picture of equity that emerges from a reinterpretation of the phrase ‘pretence of equity’. This phrase appears within a range of literary works across a number of disciplinary fields and for that reason, as well as for the symbolism of the picture it presents, makes a suitable conclusion to this book and a suitable starting point for further excursion. It is not possible to peregrinate from a field in which one is relatively expert into neighbouring territories where one is relatively inexpert without an element of pretension. No doubt that is abundantly clear to experts in the many fields over which I have had to trespass in pursuit of equity throughout the course of this book. And yet, when we look beyond the routine and pejorative sense of the word, we find that ‘pretension’ is a necessary and desirable feature of the equitable enterprise and that it is a necessary and desirable feature of interdisciplinary exploration. Before we examine my reinterpretation of the phrase ‘pretence of equity’, I must acknowledge that there is arguably a shadow side to the story of equity as I have told it. The ‘shadow’ is cast by the fact that the equity I have presented throughout this study is not a moral ideal, but a process concerned to move away from one imperfect state to a state that is less imperfect. If this means that so-called ‘bad people’ have the capacity to act equitably and remain ‘bad people’, so be it. As I have said before, and will argue in the next section, shadows are cast not by the sun, but by the soil.

3 The House of Lords brought an end to judicial activism (led by Denning MR) on behalf of wives deserted by their husbands, but Denning’s instinct was upheld when Parliament enacted similar protection through the Matrimonial Homes Act 1967. 4 Royal Bank of Scotland Plc v Etridge (No 2) [2002] 2 AC 773 recites the history and brings it to an end. 5 Charles Dickens, Bleak House (1852–53) (Harmondsworth, Penguin Books, 1971) ch 1. 6 See ch 2 at 53.

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Outlaw Equity

Outlaw Equity7 Peter Jaffey is quite right to observe that I conceive juridical equity to be ‘the second stage of a two-stage methodology of adjudication’.8 The first stage is the creation and application of general and routine law; the second stage is the correction of particular hardships caused by the generality, formality and routine of the first stage. The first stage is still associated to a great extent with law developed in common law courts (such as the requirement of a deed for conveyance of land and the payment of damages to remedy breach of contract), but in theory the second stage will apply just as readily to rules developed in chancery. If so-called ‘equitable’ creations of the Court of Chancery have become rigid and of general application, it is then required that they must also be susceptible in particular cases to second-stage moderation by true equity. The ‘shadow side’ of this secondary or supplemental conception of equity is that it will apply to correct routines, generality and erroneous formality in any contexts – even illegal contexts. Equity is not categorical and it does not come from, or aim towards, a morally ideal state. I am therefore bound to agree with Jaffey when he says that equity is ‘not a category based on a certain general moral principle’,9 but I do not agree that this is a cause for complaint. Equity is constantly working to correct the worst errors – if that makes it pragmatic rather than moral, so be it. If the supplemental or contingent nature of equity’s pragmatic influence means that it might be applied non-juridically to produce better justice among thieves as well as better justice between the parties to a legal action, so be it. The summer’s sun ‘shines on the righteous and the unrighteous alike’.10 Jaffey quotes the authors who wrote that equity ‘cannot be defined, only described’11 and objects to the fact that ‘the law of equity cannot be captured by a general formula’.12 It is a very good thing that equity has to be described and cannot be constrained to a narrow definition or turned into a fictionally scientific ‘formula’; as for the suggestion that juridical equity cannot be ‘captured’, that is a good thing too. It is when equity is captured within the bars of general formulaic 7 See also, G Watt, ‘Falstaff and the Highwaymen: Equity as Outlaw’ (2008) 1 Polemos 47–66. In that article I examine (and dismiss) the textual evidence which suggests that in I Hen IV Shakespeare intended Prince Hal to represent the justice of Robin Hood. I argue that it is significant that Robin Hood’s ‘distributive’ brand of justice is popular because it operates in an England from which the true king is absent. The prince’s justice is of the more conventional ‘corrective’ kind which returns wealth to its proper owners. Prince Hal’s equity is not the revolutionary equity of Robin Hood; it is the moderate equity of Aristotle. This fits with Tillyard’s suggestion that the Prince ‘is Aristotle’s middle quality between two extremes’ (EMW Tillyard, Shakespeare’s History Plays (London, Chatto & Windus, 1956) 265) and his observation that ‘Henry V uses his justice moderately in the way he treats his old companions – at least by Elizabethan standards’ (266). 8 P Jaffey, Private Law and Property Claims (Oxford, Hart Publishing, 2007) 118–19. 9 Ibid at 129. 10 Matthew (5:45). 11 RP Meagher, JD Heydon and MJ Leeming, Meagher, Gummow and Lehane’s Equity – Doctrines and Remedies 4th edn (Australia, London, Butterworths, Lexis-Nexis, 2002) para I-010. 12 Private Law and Property Claims, above n 8 at 119.

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Pretence of Equity rules that it loses its power to reach beyond the routine law. So long as the majority effort of jurists is to lock equity within forms and frames and formulae, a minority should be devoted to attempting its release. Jaffey and I concur to a very great extent in our understanding of equity, but whereas I consider that the unquantifiable quality of equity is a virtue that is necessary to keep ajar the door between law and better justice, Jaffey would close the door in order to keep the irritation of equity shut out. This is not to say that Jaffey has the stereotypical lawyer’s ethos – Jaggers’ ethos that would suffer ‘no feelings’ to be aired in his office13 – on the contrary, Jaffey’s objection to equity in law is based on his view that it is not moral, only conventional.14 I cannot deny that the equity I have in mind is not morally idealistic, but there is nevertheless a practical morality – an ethic – in equity’s effort to correct at least the worst abuses of the law. Neither can I deny that the equity that I have in mind is largely conventional – it follows the law for the most part. The modesty of equity’s endeavour was noted by Sir Owen Dixon where he wrote that ‘The daily relations of man and man are governed by the common law, tempered but slightly with equity’ (emphasis added).15 However, equity follows the law only so that it is at hand to correct the law where necessary in any particular case. If equity conformed to some moral ideal we would not get judges to agree on its nature and practical application and if equity conformed to a moral ideal we would not want judges to agree on it. Professor CK Allen warned us almost a century ago of the potential for ‘an ‘overrighteousness’ of equity as unfortunate in its consequences as the ‘overrighteousness’ of law, ‘a rigor aequitatis as austere as the rigor iuris’.16 He was echoing Christopher St German who had observed in Doctor and Student that ‘[e]xtreme righteousness is extreme wrong: as who saith, if thou shalt take all that the words of the law give thee, thou shalt sometimes do against the law’.17 Christopher St German was here combining the biblical proverb: ‘Be not righteous over much; neither make thyself over wise: why shouldest thou destroy thyself?’ with the classical maxim: summum jus est summa injuria. Even if it were a good idea for judges to pursue a moral ideal (which it is not), we would struggle to find a language capable of exerting the moral ideal on the law’s routines. Words such as ‘unjust’ and ‘unfair’ will not suffice – they are less precise than our developed notions of ‘equity’ and ‘unconscionability’ and have a less precise image set of metaphors to support and elucidate their operation. I suspect that most of us would sooner be subject to a leaden rule than to the scales and a sword.

13

Charles Dickens, Great Expectations (London, Chapman and Hall, 1861) ch 51. Private Law and Property Claims, above n 8 at 129. 15 O Dixon, Jesting Pilate (Sidney, Law Book Co, 1965) 13, cited in GA Kennedy J, ‘Equity in a Commercial Context’ in P Finn (ed), Equity and Commercial Relationships (Sydney, The Law Book Co, 1987) 1. 16 CK Allen, Law in the Making 4th edn (Oxford, Oxford University Press, 1946) 340. 17 Christopher St German, Dialogue in English between a Doctor of Divinity and a Student in the Laws of England etc (London, Treverys, 1530) (revised reprint, London, Atkins, 1687) ch 16. 14

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Outlaw Equity What has all this to do with ‘outlaw equity’? The answer, to repeat what was said earlier, is that an equity which is not idealistic, but which operates to correct the errors of formality regardless of context, is an equity that has the capacity to operate in contexts which might be labelled ‘illegal’. Suppose that a band of thieves commits a bank robbery. The getaway driver ends up with a car full of money which in outward appearance makes the driver the possessor and apparent owner of the cash, but the other members of the gang will claim to have a share in the proceeds. They do not have claims that any court will enforce, but they do have, in a sense, claims that are ‘fair’ inter se; and, because their claims are based on substance beyond outward form, they have claims that are in one sense ‘equitable’. When Falstaff cries, ‘A plague upon’t when thieves cannot be true to one another!’ He is expounding a fundamental paradox of justice and law. The paradox is that values such as honour, truth, fairness and justice have currency even among thieves. It is a kind of justice that thieves share their bounty fairly and equitably. It is a kind of honour; a kind of honesty. By the same token, it is a kind of theft when a thief steals from a thief. In The Life of Sir John Oldcastle,18 Munday put the paradox into the mouth of the King: ‘there ’tis: just the proverb, one thief robs another’.19 John Locke made the following observation on the phenomenon: Justice and truth are the common ties of society; and therefore even outlaws and robbers, who break with all the world besides, must keep faith and rules of equity amongst themselves; or else they cannot hold together.20

In Measure for Measure, Shakespeare asks ‘what know the laws /That thieves do pass on thieves? (2.1.23–24).21 The answer, disturbing as it may be, is that the laws which thieves pass on thieves are functionally not very different from the laws which courts pass on the parties to a legal cause; and equity between thieves is not so very different from juridical equity. It is true that no court will assist highwaymen to achieve a just division of their spoils22 – hence Lord Macnaghten’s advice to a fraudster, who was concerned that his fellow fraudsters should share his liability, that he should ‘appeal to that sense of honour which is popularly supposed to exist among robbers’.23 However, where property in dispute has been legitimately acquired, courts have occasionally declared a fair

18 A Munday, M Drayton, R Wilson and R Hathwaye The first part of the true and honorable historie, of the life of Sir John Oldcastle (London, Thomas Pavier, 1600). 19 Ibid at 1382–83. See ch 6 at 211. 20 John Locke, An Essay Concerning Human Understanding (1690) book I ch 2 pt 2. 21 All quotations from the works of William Shakespeare are taken from the ‘RSC edition’ (J Bate and E Rasmussen (eds), The RSC Shakespeare: Complete Works (London, Macmillan, 2007)) unless otherwise stated. 22 A case of a highwayman who tried to gain the court’s assistance is Everet v Williams (1725) reported 9 LQR (1893) 197. 23 Gluckstein v Barnes (Official Receiver and Official Liquidator of Olympia, Limited) [1900] AC 240 (HL) 255.

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Pretence of Equity distribution between the parties even if the dispute arises in a context tainted by illegality. Tinsley v Milligan24 is a case of this sort. Tinsley and Milligan were two women who had purchased a house on the understanding that they would be joint beneficial owners, but they agreed that legal title should be vested in Tinsley’s sole name. This was to enable them to defraud the Department of Social Security of certain welfare benefits. The relationship between Tinsley and Milligan subsequently broke down and Tinsley left the premises. She then brought proceedings against Milligan claiming possession and asserting sole legal and beneficial ownership. Milligan counterclaimed for an order for sale and for a declaration that Tinsley had been holding the property on trust for the two of them in equal shares. The judge held, in favour of Milligan, that the parties did hold in equal shares and Tinsley’s appeals were dismissed in turn by a bare majority of the Court of Appeal and a bare majority of the House of Lords. The basic principle, their Lordships agreed, was that the court should not actively intervene, but that the parties should be left to their strict entitlements in property law despite their illegal design. It was assumed that respect for proprietary entitlement is justified in its own right. Where their Lordships disagreed, was in their opinion as to which property rights should be respected. Lord Goff (dissenting) was of the opinion that legal entitlement should be left undisturbed—following Lord Chancellor Eldon’s longstanding exhortation to ‘let the estate lie where it falls’.25 Applying that approach to the facts of Tinsley v Milligan would have confirmed Tinsley’s legal title unencumbered by the equitable interest claimed by Milligan. For Goff, the defendant’s claim to be entitled in equity ought to be denied because she had not come to equity with ‘clean hands’. In contrast, Lord Browne-Wilkinson (with the majority) stressed that a transaction might have proprietary consequences in equity without the need to establish clean hands. He reasoned that the arrangement between the parties in Tinsley v Milligan was of this sort. Milligan had acquired an interest under a trust (a resulting trust)26 on the basis of standard property law presumptions. The defendant had no need to rely on the court’s particular assistance to establish her interest under the trust and she should therefore be allowed to take that which she would have been entitled to as against the claimant under the general law of property, quite regardless of the illegality of their joint design. Browne-Wilkinson applied the so-called ‘Bowmaker rule’,27 which provides that a party to a transaction tainted by illegality is entitled to that which property law (including equity) would bestow on her in a similar case not tainted by illegality, provided she at no stage pleads or relies on the fact of her illegality. Even if we agree that

24

Tinsley v Milligan [1994] 1 AC 340, HL. Muckleston v Brown (1801) 6 Ves 52, 69. 26 See ch 3 at 149−151, and see generally, G Watt, Trusts and Equity 3rd edn (Oxford, Oxford University Press, 2008) ch 5. 27 Bowmakers, Limited v Barnet Instruments, Limited [1945] KB 65. 25

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Outlaw Equity the court did not lend any active assistance to the claimant (Milligan) in this case, it might seem outrageous that her right should even have been recognised; but consider the outcome if her right had not been recognised: one fraudster would have gained an unjust windfall at the expense of the other. It hardly seems proper that the court should sit back and allow such a result to ensue.28 In recognising that both parties had an equal entitlement to the land in equity, the court was able to act neutrally between the parties while upholding the public sanctity of its most favoured abstraction – proprietary title to land. The justice of equitable title is immune to the illegality of context. Other factors being equal, property rights are deemed to be just in and of themselves; as Christopher St German wrote in his Dialogue (1530): It is in human law, duly constituted, that justice concerning the possession of lands and the ownership of chattels is made plain, and whatever is possessed in accordance with those laws is justly possessed, and what is held against them is unjustly held.29

It seems that, so far as property is concerned, equity between ‘thieves’ is as good as equity between parties to a cause in chancery. To borrow from Locke, we might say that the only difference between the allocation of equitable property between parties in a court of law and allocation of assets by highwaymen on the common30 is that the thieves overlook ‘all the world’ for reasons of ‘convenience’, whereas courts overlook any claims (legal or moral) that the rest of the world might have in the disputed assets, not only as a matter of convenience, but because it accords with a principled commitment to the sanctity of proprietary entitlement. I should stress again that the justice of property rights is, as we saw in earlier chapters, only a fiction of justice; but it provides a practical starting point in the quest for a more complete account of just resource allocation. From that starting point there are many ways, including fairer taxation, to adapt the story to make it more just in a distributive sense. Equity’s capacity to operate in ‘outlaw’ contexts is the price which must be paid if we want equity to be free to operate outside contexts that are narrowly legal. We should be in no doubt that equity’s operation outside narrowly ‘legal’ contexts is a good thing. It is, for example, highly desirable that we should read equitably 28 Although at the time of writing the Law Commission for England and Wales has recently published a consultation paper in which it provisionally proposes that legislation should be introduced to provide judges with a discretion (in cases such as Tinsley v Milligan) to deprive a beneficiary of his or her interest where a trust has been created to conceal the beneficiary’s interest in order to commit an offence: The Illegality Defence: A Consultative Report (Consultation Paper No 189, January 2009). 29 Christopher St German, Prologue (quoted in SK Dobbins, ‘The Court of Conscience or the King’s Command, the Dialogues of St. German and Hobbes Compared’ (1991) 9(1) Journal of Law and Religion 113–49). Endicott quotes the prologue to St German’s Doctor and Student: ‘It is in human law, duly constituted, that justice concerning the possession of lands and the ownership of chattels is made plain’. TAO Endicott, ‘The Conscience of the King: Christopher St. German, Thomas More, and the Development of English Equity’ (1989) 47 University of Toronto Faculty of Law Review 549, 560. 30 The facts of Everet v Williams, above n 22 were along these lines.

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Pretence of Equity beyond the letter of all texts, whether or not those texts happen to be, technicallyspeaking, ‘legal’. Indeed, it is especially important that we read beyond texts in this present age of instant electronic communication. It is also essential in this age, as it has been in all ages, to read beyond the literal letter of religious texts. Fundamental faith in religious scripture is one thing, but fundamental faith in the literal letter of religious texts is a way of reading that can lead to unjustifiable harm in particular cases. Believers do well to take the advice that Dickens offered in his last will and testament, where he exhorted his children ‘humbly to try to guide themselves by the teaching of the [scripture] in its broad spirit, and to put no faith in any man’s narrow construction of its letter here or there’.31 The same advice applies equally to zealous atheists, who tend to read religious scripture as literally as any theist, and perhaps more literally than most. Another sense in which equity should be encouraged in non-juridical contexts is when it leads us to waive strict insistence on routine or formal entitlements. It is good, for example, when the person queuing at the railway station at 10.00 am to buy a ticket for the 10.30 train allows a person to ‘queue-jump’ to buy a ticket for the 10.05 (always assuming that care has been taken to ensure that no other person in the queue will be unduly prejudiced).32 Here the non-juridical ‘law’ of queuing (in England it is a customary convention bordering on the status of law) dictates that the first person in the line has the right to purchase first, but in our example the routine rule has been equitably modified in favour of better justice. The chancery maxim which confirms that ‘the first in time is first in right’ only applies ‘where the equities are equal’.33 When we next find ourselves at the front of the queue we might recall the question that Walter Pater posed in the previous chapter, to paraphrase: ‘what shall there be on our side, what philosophy of life, what sort of equity?’34 In Bleak House, Richard Carstone supposed that it is ‘not necessary to quarrel with our right’, (14) but he was tragically wrong. To quarrel with our right and entitlement is precisely what equity requires of us. It is not enough to hear pleasant tales of equity. The audience is challenged to perform. RS White made a similar observation in the course of his commentary on Wilson’s Arte of Rhetoric:35 ‘the true end of rhetoric is not only to persuade audiences, but to stir them to moral action… The classic case of stirring emotions to inspire action is again relevant to both law and literature’.36

31 The entire will is reproduced as an appendix to John Forster’s Life of Charles Dickens (London, Cecil Palmer 1872–74). 32 We saw in ch 1 that Achilles made the mistake of seeking to award second prize in a chariot race to the person who came in last, thereby prejudicing the one who came in second. It may be equitable to give a prize to the one who comes in last, but not if it unfairly prejudices someone else. 33 PV Baker and P St J Langan, Snell’s Principles of Equity 28th edn (London, Sweet & Maxwell, 1982) 31. 34 WH Pater, Appreciations with an Essay on Style (London, Macmillan, 1889) 174. 35 See ch 6 at 212. 36 RS White, Natural Law in English Renaissance Literature (Cambridge, Cambridge University Press, 1996) 85.

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House and Homecoming Before we end this talk of outlaw equity, I must acknowledge that I am conscious that the label ‘outlaw’ is (like the label ‘lawyer’) merely temporary and partial. It is also a label which in Bleak House Dickens applies with more than a hint of pathos to the homeless crossing-sweeper, ‘Jo the outlaw’ (16). There is a moment in the novel when we are invited to follow Jo down to Blackfriars Bridge where he intends to settle to eat a meagre meal. The passage, full of symbolism, is intensely revealing of the need for the sort of equity that the present study has proposed: And there he sits, munching and gnawing, and looking up at the great cross on the summit of St. Paul’s Cathedral, glittering above a red-and-violet-tinted cloud of smoke. From the boy’s face one might suppose that sacred emblem to be, in his eyes, the crowning confusion of the great, confused city – so golden, so high up, so far out of his reach. There he sits, the sun going down, the river running fast, the crowd flowing by him in two streams – everything moving on to some purpose and to one end – until he is stirred up and told to ‘move on’ too. (19)

There is an ideal high above the fog of London and the law, but it is out of the reach of the homeless boy. The world travels by him ‘in two streams’ like the juridical streams of law and equity. He is flotsam on this river of humanity. Stirring is not a good thing when it stirs the displaced. It is only a good thing when it stirs the complacent. Equity in Jo’s case would resist his extreme displacement and bring him home. It should be obvious that what is desirable in this present age – which may be fairly characterised as an age of entitlement, extremism and excess – is to discover a shared language of restraint, moderation and measure within our shared cultural traditions. Equity – the anti-extremist – supplies this language.

House and Homecoming It is good to be law-abiding, but it is better to abide with equity. Equity always seeks to bring us home. The general language of law is, as we have seen, a language that abstracts earth into estate and home into house, and in the process it extracts and excludes the human story. When we dwell on the romantic side of the routine, we find stories in which the house becomes a home again. Bleak House itself is the story of how Esther Summerson, the figure of equity, made a house into a home. We also find in literature stories in which a house is just a house. The trilogy of John Galsworthy’s Forsyte Saga (1906–21) is focused on the lawyer Soames Forsyte. In the first book, The Man of Property (1906), he is depicted as a person for whom entitlement is the only thing that yields value and confers meaning; in the second book, In Chancery (1920), he attempts to lock up his wife in his formal expectations as if it were the caging of a bird; in the last book To Let (1921), he finally lets go. There is an episode in part two (the middle part) of In Chancery (the middle book) in which Soames Forsyte encounters a 237

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Pretence of Equity happy crowd (he calls them a rabble) celebrating the ‘Relief of Mafeking’.37 We are told that from the windows of the clubs in Pall Mall, ‘his own kind’ were looking out ‘with regulated amusement’. Down in the streets, Soames broods as if ‘he had suddenly caught sight of someone cutting the covenant “for quiet possession” out of his legal documents’: ‘looking up at the houses he thought, “After all, we’re the backbone of the country. They won’t upset us easily. Possession’s nine points of the law.”’ At last he escapes the ‘queer outlandish nightmare in the streets’ and enters his home, except it is called, not home, but ‘his father’s house’. This is no home to him, because he is akribodikaios – a stickler for his rights. The chapter ends: ‘Walking to the centre of the great empty drawing-room, he stood still. A wife! Somebody to talk things over with. One had a right! Damn it! One had a right!’38 At first sight, there is a conflict between equity’s tendency to provide a local habitation and equity’s tendency to unsettle settled norms, but equity can do both because equity moderates and corrects the contrary extremes of too much stasis and too much motion and moves them towards the mean. We saw in chapter five how Esther Summerson stirred the most still character in the novel, Lady Dedlock, and stilled the most stirred, the ‘outlaw’ Jo. Herman Melville’s short story Bartleby,39 which was published at the same time as Bleak House, is a most profound and beautiful exploration of the peculiar relationship between a scrivener and his employer. In a reversal of the relationship between Nemo and Snagsby in Bleak House, it is the employer, a former Master in Chancery, who is nameless. Bartleby is the scrivener’s name. Another reversal is the fact that the story is set after the abolition of the New York Court of Chancery as a result of reforms which took place between the years 1846 and 1848, whereas Bleak House is set before the abolition of the English Court of Chancery. The most profound contrast, though, is between the scrivener Bartleby and the outlaw Jo. By the time we meet Bartleby he has become a person of utter stillness and stubbornness. He is utterly unreasonable and utterly set on his own routines, but it is not because he is insisting on any right or entitlement. He is not akribodikaios. Bleak House is a study in intransigence that ensues when a formal will is lost and litigious wills collide, Bartleby is a study in the stubbornness that ensues when all will, including the will to live, is utterly lost. Bartleby’s constant refrain is ‘I would rather not’ do such and such until finally we find that he would rather not live at all. At the end of the story we learn that Bartleby once worked in the dead-letter

37

Which occurred on 17 May 1900. J Galsworthy, In Chancery pt II ch 14. In Chancery ends with the birth of a daughter to Soames and Irene. The last lines are: ‘The sense of triumph and renewed possession swelled within him. By God! This – this thing was his! 39 References are to the version appearing in Herman Melville, Billy Budd, Sailor and Other Stories (London, Penguin, 1985) 57–99. The story first appeared in two parts under the title ‘Bartleby, the Scrivener: A Story of Wall Street’ in Putnam’s Magazine in November and December 1853. For an insightful discussion of the story see B Thomas, Cross-examinations of Law and Literature: Cooper, Hawthorne, Stowe & Melville (New York, Cambridge University Press, 1987) ch 7. 38

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House and Homecoming office where mail which fails to reach its destination is sifted and destroyed. Bartleby’s tragic end has its beginning in long exposure to the narrative deadends of lives lost in the post. The contrast between Bartleby and Jo is that Jo has no estate – he inhabits the crossing – whereas Bartleby stations himself wherever he is. Bartleby makes a residence at his work desk and in a corridor, but he never makes a home. Jo was moved to death. Bartleby gradually becomes more still and more still until he stops dead. At last his employer finds him in his prison cell, huddled with his head ‘touching the cold stones’. We are told that ‘nothing stirred’ except his eyes were staring – they were open and yet seemed ‘profoundly sleeping’. The warden asks if Bartleby is asleep and the former Master in Chancery replies in the language of the recently deceased court: ‘With kings and counselors’ he says. Equity’s moderating tendency towards the mean is a form of homecoming. A human located at the extremes is a human displaced from home. Home is, to use a cliché, a ‘happy medium’. Aristotle expresses the pleasure of displacement and resettlement in more refined terms: ‘Let us define pleasure as a certain motion of the soul and a sudden and perceptible settling of the soul into its normal condition’.40 This serves very well as a description of the pleasing nature of equity’s action – it stirs us out of complacent conformity before it brings us home. Before we leave these thoughts of home, it is timely to mention the remarkable fact that in 1856 Charles Dickens used the profits from sales of Bleak House (combined with royalties from his other recent successes – Hard Times and Little Dorrit) to buy Gads Hill Place, near Rochester in Kent. It was the first house he ever owned, and the last. He died there, in the dining room, on 9 June 1870. It is fitting that the profits from a book about Esther’s homecoming should bring Dickens home, and that his home should be on precisely that spot where Falstaff uttered his appeal to equity.41 To Dickens it certainly felt like coming home. Not only because he loved Shakespeare and Falstaff,42 but because as a young child he had visited Gadshill with his father. The house makes an appearance in a peculiar and touching episode in chapter seven of Dickens’ The Uncommercial Traveller, in which the adult Dickens meets himself as that young child: Presently, the very queer small boy says, ‘This is Gads-hill we are coming to, where Falstaff went out to rob those travellers, and ran away.’ ‘You know something about Falstaff, eh?’ said I.

40

Aristotle, Rhetoric (trans TA Moxon) book I ch XI. See ch 6 at 208. 42 Dickens wrote in a letter to Lord Carlisle: ‘This is Falstaff’s Gad’s Hill and I live on the top of it’ (8 August 1860). 41

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Pretence of Equity ‘All about him,’ said the very queer small boy. ‘I am old (I am nine), and I read all sorts of books. But DO let us stop at thetop of the hill, and look at the house there, if you please!’ ‘You admire that house?’ said I. ‘Bless you, sir,’ said the very queer small boy, ‘when I was not more than half as old as nine, it used to be a treat for me to be brought to look at it. And now, I am nine, I come by myself to look at it. And ever since I can recollect, my father, seeing me so fond of it, has often said to me, ‘If you were to be very persevering and were to work hard, you might some day come to livein it.’ Though that’s impossible!’ said the very queer small boy, drawing a low breath, and now staring at the house…with all his might. I was rather amazed to be told this by the very queer small boy; for that house happens to be MY house, and I have reason to believe that what he said was true.

Pretence of Equity On such an afternoon some score of members of the High Court of Chancery bar ought to be – as here they are – mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might. Charles Dickens, Bleak House

Dickens is here repeating a complaint that had been levelled at the Court of Chancery more than two centuries before the period in which Bleak House was set. The phrase ‘pretence of equity’ denoted an unjustified attempt to escape the common law courts and common law rules, hence William Lambarde wrote that it is often seene, that one man doth implead another, by this pretence, in the Court of Equitie, for cause that requireth no helpe of Equitie at all; but doth most properly pertaine to the determinations of the Common Law.43

Even Sir Francis Bacon, an ardent supporter of chancery equity and the royal prerogative, proposed that the chancellor should be prohibited from issuing a so-called ‘equitable’ decree contrary to the express wording of statute (except where such a decree would be necessary to prevent retroactive hardship). He wrote that: ‘[n]o decrees shall be made, upon pretence of equity, against the

43 W Lambarde, Archeion, or, A discourse upon the high courts of justice in England (1591) (revised 1598) (London, printed by E. P[urslowe] for Henry Seile, dwelling at the Tygers-head in St Pauls Church-yard, 1635) 77. The same point was still being made a century later (see Thomas Hunt, Argument for the Bishops’ Right etc (London, 1682) 146–48: ‘Our judges at law, take themselves bound, not to hear or regard the allegations of the defendants against the plaintiffs pretence… when the same matter shall be heard in Chancery’).

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Pretence of Equity express provision of an act of parliament’.44 Less surprising is the suggestion that Sir Edward Coke (who, as we learned in chapter two, was removed from the office of Lord Chief Justice of the King’s Bench because of his opposition to the King’s judicial prerogatives and the chancellor’s equity jurisdiction) might have employed the phrase in criticism of the Court of Chancery. A 1723 account of the proceedings conducted against Sir Edward Coke in the King’s Council on 26 June 1616 states that Coke had expressed the fear that ‘the Common Law would be overthrown’ and that ‘the Light of the Law would be obscured by Pretence of Equity’.45 The ‘obscurity’ metaphor, whether it was Coke’s or not, anticipates Dickens’ immortal chancery ‘fog’. If we dig even deeper into the archaeology of the phrase ‘pretence of equity’ we find that John Speed employed it in The History of Great Britain, published just a few years before Coke’s dismissal.46 Speed uses the phrase to describe the official reasons given for deposing Richard II to make way for Henry Bolingbroke, Henry IV. We know that for Shakespeare the equity word was closely associated with the royal right to succeed to the throne: equity recognises the true monarch even when the form of law has placed a usurper on the throne. If Coke really did use the phrase ‘pretence of equity’, perhaps he had picked up from Speed’s account a special sense of danger in ‘pretence of equity’; a sense, perhaps, that the phrase describes a trick designed to establish false kings upon thrones or to enable true kings to establish false justice. With those themes in mind, it is no surprise to find that The Grand Remonstrance levelled at Charles I in 1641 is damning in its criticism of the prerogative courts including the Court of Chancery, the Exchequer Chamber and the Court of Wards. More surprising is the fact that the complaint was not limited to the prerogative courts. It was also alleged that the common law courts, in response to competition from the prerogative courts, had taken it on themselves to ‘forsake the rules of the Common Law’ and had been guilty of ‘straying beyond their bounds, under pretence of equity, to do injustice’.47 The clear implication in every example we have considered is that the pretence in question is a ‘false pretence’. Dickens makes this express when, mirroring closely the language of The Grand Remonstrance, he makes clear that his complaint is not limited to the Court of Chancery but is directed to ‘all courts and of all authorities in all places under all names soever, where false pretences are made, and where injustice is done’ (32). It had been more or less forgotten when Dickens was writing, and it has been completely forgotten now, but the true sense of ‘pretence’ was not pejorative to begin with. It may be too late to rehabilitate the word ‘pretence’, but the phrase ‘pretence of equity’ is less well known and is 44 J Spedding, L Ellis and D Heath (eds), The Works of Francis Bacon vol xv (Boston, Taggard and Thompson, 1864) 352. 45 W Bohun, Cursus Cancellarie; or, the Course of Proceedings in the High Court of Chancery (London, E and R Nutt, and R. Gosling for J Walthoe, 1723) 509. 46 J Speed, The History of Great Britaine etc (London, William Hall and John Beale, 1611) book 13 ch 9, 609. 47 Presented to the King, 1 December 1641.

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Pretence of Equity already quaintly poetic, so I will claim poetic licence to turn it to a new sense by turning it back to its original sense. The original meaning of ‘pretence’, from the Latin prae-tendere, was to ‘reach forward’, literally to ‘pre-extend’. Dickens unites this original sense with the pejorative sense when he wonders How many people out of the suit Jarndyce and Jarndyce has stretched forth its unwholesome hand to spoil and corrupt would be a very wide question… In trickery, evasion, procrastination, spoliation, botheration, under false pretences of all sorts. (1)

At one point Dickens even acknowledges the possibility of a true pretence, where the lawyer Vholes is described as ‘a good fellow, a safe fellow, a man who did what he pretended to do, a very good fellow indeed!’ (60), but this is the deluded Richard speaking about a lawyer who is clearly professionally intent on wringing every last penny out of him – so the reference to true pretence is deliberately ironic. Esther Summerson sees this. She comments (immediately after the passage just quoted) that Richard ‘was so defiant about it that it struck me he had begun to doubt Mr Vholes’. Esther Summerson is true equity, of course, and we should expect that she will see through false pretences; and so it proves – in the chapter appropriately named ‘Enlightened’, Richard admits that he ‘can’t make pretences with her’ (51). My attempt to rehabilitate the original sense of ‘pretence of equity’ begins with Hugo Grotius’ De Jure Belli ac Pacis (On the Law of War and Peace (1625)) where he writes that Equity ‘reacheth forth an exception against the words of the law’.48 Lord Chancellor Ellesmere employed a similar sense of equity stretching forth in The Case of the Postnati, where he said: ‘That words are taken and construed sometimes by extension; sometimes by restriction… sometimes by equity out of the reach of the words’.49 Pomeroy, writing on ‘The Nature of Equity’, provides an excellent account of equity’s constant stretching forth to justice beyond the law: It has, therefore, as an essential part of its nature, a capacity of orderly and regular growth, a growth not arbitrary, according to the will of individual judges, but in the direction of its already settled principles. It is ever reaching out and expanding its doctrines so as to cover new facts and relations, but still without any break or change in the principles or doctrines themselves.50

Pretence of equity, properly understood, is a true pretence. It is a reaching forth to better justice beyond the law. It is hard to tell whether Sir Henry Maine was censuring equity when he observed that the ‘rules of Equity…pretend to a paramount sacredness’,51 but even if he was employing ‘pretend’ in the positive sense of ‘reaching for’, his summary is not quite right. Equity as I conceive it is not

48 Cited in V Kahn, Wayward Contracts: The Crisis of Political Obligation in England 1640−1674 (Princeton, Princeton University Press, 2004) 40. 49 The Case of the Postnati (1608) 2 Howell’s State Trials 675. 50 JN Pomeroy, A Treatise of Equity Jurisprudence (in three volumes) vol I (San Francisco, AL Bancroft and Co, 1881) para [59]. 51 Henry S Maine, Ancient Law (1861) 3rd edn (London, John Murray, 1866) 29.

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Pretence of Equity reaching beyond the law to paramount sacredness. Equity is not Utopian, it simply reaches beyond the routines of law towards the particularities of the human condition. We should encourage true pretence of equity, but we should discourage all ‘pretence of law’. When law is the reason tendered forth it is objectionable even when the pretence is true. We considered some examples of pretence of law, without naming it, in chapter one. We observed that Angelo in Measure for Measure, having rigorously enforced the law against Claudio, tendered this lame excuse: ‘It is the law, not I condemns’ (2.3.80). We also observed that Shylock claimed to stand ‘for the law’ (4.1.144). Angelo and Shylock both extend forth the law to excuse an abuse. The pretence may be technically true or it may be false, either way it should be opposed. The abdication of individual responsibility under pretence of law remains a major blight on society. Recall my friend in the hospital bed, who declined to sue the hospital when a lowly employee accidentally injured him the day after the same hospital had operated to save his life. How easy it would have been to sue: ‘not because I want to, but because it is important to ensure that this sort of thing does not happen to other patients in the future. The hospital has been negligent in law, so it should pay’. What a false pretence to law that would be. It relies on the assumption that legal action is the only action that the hospital will understand and that legal language is the only language available. Dickens exposes the problem of pretence of law in a number of places in Bleak House. Sir Leicester Dedlock, that great exemplar of akribodikaios, having instructed Tulkinghorn to press the boundary dispute with Boythorn, explains: I cannot readily conceive how ANY right of mine can be a minor point, I speak not so much in reference to myself as an individual as in reference to the family position I have it in charge to maintain. (7)

To use one’s assumed duty to others as a false pretence for litigation is of a similar species as that most terrible of excuses: ‘I was only obeying orders’. Another example of selfishness disguised as selflessness is provided by Dickens when Richard advances a lame excuse for torturing himself on the rack of the Jarndyce case: [D]on’t think me a heap of selfishness. Don’t suppose that I am splitting my head and half breaking my heart over this miserable Chancery suit for my own rights and interests alone. Ada’s are bound up with mine; they can’t be separated’. (51)

We saw an early example of the same phenomenon in chapter one when we observed the situation retold by Plutarch in which Pericles ‘was shielding himself behind the plea that a certain law prevented his taking down the tablet on which the decree was inscribed’.52 Even judges are not immune to pretence of law; in fact they rely on the technique more than any of us. I do not mean to judge the judges. They have a dirty job to do and on the whole they do not create the dirt 52

Ch 1 at 26.

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Pretence of Equity but rather distribute it between the parties as fairly as they can. I will, though, commend the example of the judge (of course it was Lord Denning) who once wrote: I never say, ‘I regret having to come to this conclusion but I have no option’. There is always a way round. There is always an option – in my philosophy – by which justice can be done.53

The Future Every student knows what equity means. It arises out of the tendency of all law to become rigid. Tom Denning54

These are the opening words of a lecture on ‘The Need for New Equity’, delivered in 1952 by Alfred ‘Tom’ Denning, who went on to become Lord Denning, Master of the Rolls. In that lecture, Denning portrayed the ‘rules of law’ – legislative or judicial – as appropriate to society when it is made, but less fitting over the course of time. Henry Maine, writing on equity, noted likewise that ‘[s]ocial necessities and social opinion are always more or less in advance of law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen’.55 Roscoe Pound explored the same dynamic in The Spirit of the Common Law, where he wrote that: ‘periods of liberalization, in which the law is made over by reception of ideas from without, have always involved for a time a movement away from law, a temporary reversion to justice without law. In such periods at first the chief reliance for obtaining justice seems to be the power of the magistrate’’;56 and ‘A developed legal system is made up of two elements, a traditional or habitual element and an enacted or imperative element. …. the two act upon and correct each other so that when either, from occupying the field too long, becomes too fixed and rigid, the needed flexibility is restored to the law by its rival’.57

Denning was speaking before the 1966 Practice Direction by which the judicial committee of the House of Lords authorised itself to depart from its own precedents ‘when it appears right to do so’.58 This produces the sort of equity which allows the law to keep pace with social change, but this is not the equity that bends the law – it is an ‘equity’ designed to allow the law to be broken in the 53

A Denning, The Family Story (London, Butterworths, 1981) 208. A Denning, ‘The Need for a New Equity’ (1952) 5 Current Legal Problems 1, 1. 55 Henry S Maine Ancient Law (London, John Murray, 1861); (London, Dent ‘Everyman’ edn, 1917) 23. 56 R Pound, The Spirit of the Common Law (Francestown, NH, Marshall Jones, 1921) 54. 57 Ibid at 172. 58 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. 54

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The Future interests of justice. The bending of the law came earlier – in the very act of issuing the practice direction with a view to enabling departure from precedent. It was by that statement that their Lordships, acting as authors in their own right, bent the routine legal story back towards better justice. Equity is a creative means to close the gap between the progress of society and the conservatism of the law. On this analysis, equity appears radical from the perspective of the law and conservative from the perspective of wider society – aspects in which it resembles Denning himself. I have argued throughout this book that equity is a poetic art in the way it renders the abstract tangible as metaphor does and in the way it moderates unfeeling and unthinking extremes and brings humanity home to the mean. Another resemblance between equity and poetry is to be found in the way they engage with the conventional. The art of equity lies in the dynamic, ever-moving balance which the judge strikes between the routines of the law and the demand for more particular justice. GN Leech sees poetry as the art – closely comparable to the art of equity as I have described it – of avoiding the twin errors of rigid adherence to past precedent and unthinking conformity to contemporary routines: So we may think of the successful poet as avoiding the banality of two dimensions: the banality of the poetic convention of the past; and the banality of the everyday usage of the present. These two forces pull in opposite directions, and there is rarely a firm balance between them.59

With equity there is never a ‘firm balance’, but always a moving moderation. John Millar expressed this as he also made express the connection between art and judgment, when he wrote: The distinction between strict law and equity is never, in any country, a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, the refinement of a people . . . Law and equity are thus in continual progression; and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is, by length of time, converted into an old rule. A great part of what is now strict law was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next.60

It is with equity’s continual progress in mind, that we turn to consider, in conclusion, what the end of the story might look like.

59 60

GN Leech, A Linguistic Guide to English Poetry (London, Longman, 1969) 23–24. J Millar, An Historical View of the English Government (1803) (London, J Mawman, 1818) 354,

358.

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Pretence of Equity

The Limit We can imagine a number of ways to release the bird of equity from its confinement in the cage of general laws. One option is to increase the space between the bars of legal language. This is achieved by reducing the size of the bars, and this is achieved by showing that legal language is not as substantial as it purports to be. We took this option when we observed that general laws often resemble creative works of fiction.61 This approach allows the bird to reach out through the bars and perhaps the bird can escape the bars in a small way. A more radical option would be to deconstruct the cage. The bars of legal language can be utterly deconstructed as all language can, but I have chosen to acknowledge the practical obstacle of the bars and to find more moderate or ‘equitable’ ways of rendering the obstacle less substantial, in other words to keep the bars always in view rather than seek to deconstruct them into vapours. The forces parliamentary and professional that tell law’s stories also imbue them with a political power. Legal language cannot simply be ignored; it must be engaged with, disputed, negotiated and moderated. I have not sought to avoid or nullify legal language, but to show that legal language is at least negotiable to some degree. This is what I mean when I refer to justice ‘beyond the law’ – not that we should seek justice without law, but that we should keep the law in view, and, understanding that the barrier it presents is not as tangible as it appears, reach just beyond it. There is another reason for preferring a moderate equitable analysis to extreme deconstruction, which is that a sincere deconstructivist analysis can never be sincerely expressed. It is not that it cannot be sincere, only that it cannot be sincere and expressed. The moment it adopts any mode of definite expression it undermines its own project. Derrida admits this, if he admits anything, when he says that ‘[a]ll sentences of the type “deconstruction is X” or “deconstruction is not X” miss the point’.62 A sincere deconstructivist approach can never be expressed in language that is normal and so will never appear lucid to a normal reading. Deconstruction may be extremely true, but it is not moderately and humanely true, and therefore it is practically a lie. My task in this book has been the very practical one of engaging with the solid obstacle of the law, in that task one derives a great deal of assistance from creative minds who have excelled in the task of engaging with the solid obstacles of popular prejudice and artistic convention (not to mention strict law). In short, I agree with Professor Weisberg’s observation that lawyers ‘need Shakespeare and Dickens more – infinitely more – than they need Derrida’.63

61

See ch 4 at 137. J Derrida, ‘Letter to a Japanese Friend’ in D Wood and R Bernasconi (eds), Derrida and Differance (Evanston, Il, Northwestern University Press, 1988) 3. 63 RH Weisberg, Poethics: And Other Strategies of Law and Literature (New York, Columbia University Press, 1992) 121. Derrida has been said to practise a method of prose that is ‘obscurantisme terroriste’ (terroristic obscurantism). Foucault said that ‘[h]e writes so obscurely you can’t tell what 62

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The Limit Another way to escape the cage is to open the door. It is the hardest way, because it requires genuine openness to other languages. To open the cage symbolises the ethical openness which I expressed in terms of excursion and education in chapter one. The door is opened a little when we acknowledge that jurisprudence resembles humane art more than it resembles strict science. Lawrence Boythorn shows us a more adventurous way. At the conclusion of Bleak House we are told that he ‘continues to post tremendous placards on the disputed thoroughfare’ but ‘with his bird upon his head’ (66). In the midst of his playful litigiousness, he lets the bird fly freely because he knows that the bird is tamed and will return. He knows this because through constant engagement with the bird he has cultivated a relationship of trust and interdependence. He knows that he will never lose sight of it. A real bird might not be trusted to behave like this, but we are not concerned with real birds. We are concerned with the human capacity to judge equitably. The more adventurous way (which begins and ends with an ideal of education) is to cultivate the art of equitable judgment (in law) and the art of equitable judgement (in life in general) of the sort that seeks more naturally instinctive justice but never strays too far from the law. This is the symbolism of Lawrence Boythorn, to connect with nature – human and otherwise – in the midst of law. Even his name connects ‘law’ to the ‘thorn’ of the material life that is always to hand. His character achieves the immensely difficult task of maintaining a constant connection between law and nature. This is a supremely important task, for one sees on reflection that the equitable character is the character of one who continually struggles to close the gap between law and nature. Portia acknowledged that ‘The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree’ (1.2.12-13). Natural inclinations of anger, passion, love and faith will continue to leap far beyond a cold decree. The virtue of equity is that it leaps as nature leaps, but only a little way beyond the letter of the law. When Sir Francis Bacon opined that Utopian philosophers ‘make imaginary laws for imaginary commonwealths’ whereas lawyers are concerned with ‘received law and not what ought to be law’,64 he presented too stark an opposition between law and philosophy. We should acknowledge the present state of the law, but we should also acknowledge that it is only a starting point. It is important that we then use our imagination as the philosophers do. It is not required for us to imagine Utopia, but merely to imagine how we might move away from the worst errors of the present law. That movement will hopefully take us closer to the ideal, but there is no certainty that it will and no necessity that it should. To reach – to pretend – is all that is required. In the opening paragraph of this book

he’s saying, that’s the obscurantism part, and then when you criticize him, he can always say, “You didn’t understand me; you’re an idiot.” That’s the terrorism part’. (Quoted in ‘Reality Principles: An Interview with John R Searle’) (online: Reason.com, February 2000). 64 The Advancement of Learning (1605) (reproduced in B Montagu (ed), The Works of Francis Bacon (Hart, Carey & Hart, 1852) 238.

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Pretence of Equity I suggested that lawyers tend to regard the idea of equity as if it were a door having one side within the law and one side without and that they prefer to keep the door closed and to see only their side of it. I hope that I have succeeded in demonstrating that legal language, including the legal language of equity, is not so perfectly framed as to enable the door to be shut tight; and I hope that I have succeeded in demonstrating that this is no bad thing. It would be a very good thing to find a perfect law in the infinite distances beyond the door, but until then it will be good enough to reach out to the other side of the door. We will not find Utopia there. Just humanity.

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Bibliography Daniel, S, The Poetical Works of Mr Samuel Daniel etc (in two volumes) (London, R Gosling et al, 1718) Darling, CJ, Scintillae Juris (London, Stevens and Haynes, 1889) Dasent, Sir GW, Popular Tales from the Norse (1859) (translating PC Asbjrnsen and J Moe, Norske Folkeeventyr 1841–44) Deleuze, G and Guattari, F, Mille Plateaux (Paris, Minui, 1980) Demetrius On Style (TA Moxon ed and trans) Everyman’s Library Edition (London, JM Dent, 1934) Denning, A, The Family Story (London, Butterworths, 1981) Dicey, AV, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (London, Macmillan, 1919) Dickens, Charles, A Christmas Tree (1850) (Christmas Books, Tales and Sketches (New York, Garden City, Nelson Doubleday, undated c.1955)) Bleak House (1852–3) (Harmondsworth, Penguin English Classics, 1971) Great Expectations (1860–61) (London, Penguin Popular Classics, 1994) Hard Times (1854) (London, Penguin Popular Classics, 1994) Letters of Charles Dickens 2nd edn (G Hogarth and MA Dickens eds (London, Chapman and Hall, 1880)) Little Dorrit (London, 1855–1857) (Harmondsworth, Penguin, 1967) The Battle of Life (1846) (Charles Dickens, The Christmas Books Vol II (Harmondsworth, Penguin, 1971)) The Pickwick Papers (or the Posthumous Papers of The Pickwick Club) (1836–37) (Harmondsworth, Penguin Classics, 1986) Dilliard, I, The Sprit of Liberty: Papers and Addresses of Learned Hand (New York, Alfred A Knopf Inc, 1952) Dixon, M and Griffiths, G, (eds), Contemporary Perspectives in Property, Equity and Trusts Law (Oxford, Oxford University Press, 2007) Dixon, O, Jesting Pilate (Sidney, Law Book Co, 1965) Dixon, P, Rhetoric (London, Methuen & Co Ltd, 1971) Dolin, K, A Critical Introduction to Law and Literature (Cambridge, Cambridge University Press, 2007) Fiction and the Law: Legal Discourse in Victorian and Modernist Literature (Cambridge, Cambridge University Press, 1999) Downer, LJ (trans and ed), Leges Henrici Primi (Oxford, Oxford University Press, 1972) Durand, B, Le Crom, J-P and Somma, A, (eds), Droit sous Vichy (Frankfurt am Main, Vittorio Klostermann, 2006) Dworkin, R, Law’s Empire (Harvard, Belknap Press of Harvard University Press, 1986) Dyson, AE, The Inimitable Dickens (London, Macmillan’s & St Martin’s Press, 1970) Eagleton, T, William Shakespeare (Oxford, Blackwell, 1986) Eden, K, Hermeneutics and the Rhetorical Tradition: Chapters in the Ancient Legacy and Its Humanist Reception (New Haven, Yale University Press, 1997) Poetic and Legal Fiction in the Aristotelian Tradition (Princeton NJ, Princeton University Press, 1986) Edwards, P (ed), King Lear The Macmillan Shakespeare (London and Basingstoke, Macmillan, 1975)

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Bibliography Eliot, TS, Murder in the Cathedral (London, Faber and Faber, 1935) Eliott, George, Felix Holt, the Radical (London, William Blackwood & Sons, 1866) Empson, W, Seven Types of Ambiguity (London, Chatto and Windus, 1930) Endicott, TAO, Vagueness in Law (Oxford, Oxford University Press, 2000) Erasmus, D, Moriae Encomium, (‘The Praise of Folly’) 1509 Estienne, H, Les prémices (Paris, 1594) Fabozzi, FJ and Modigliani, F, Mortgage and Mortgage-Backed Securities Markets (Boston, Harvard Business School Press, 1992) Finn, MC, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge, Cambridge University Press, 2003) Finn, P (ed), Equity and Commercial Relationships (Sydney, The Law Book Co, 1987) Fisher, HAL, (ed), The Collected Papers of Frederic William Maitland, vol III (Cambridge, Cambridge University Press, 1911) Fisher, JH, Richardson, M and JL Fisher (eds), An Anthology of Chancery English (Knoxville, University of Tennessee Press, 1984) Floridi, L, Sextus Empiricus: The Transmission and Recovery of Pyrrhonism (New York, Oxford University Press US, 2002) Forster, EM, Howards End (London, Edward Arnold, 1910) (London, Penguin, 1985) Forster, J, Life of Charles Dickens (in three volumes) vol II (London, JB Lippincott & Co, 1872–74) Fortier, M, The Culture of Equity in Early Modern England (Ashgate, Aldershot, 2005) Fraenkel, E, The Dual State: A Contribution to the Theory of Dictatorship (Oxford, Oxford University Press, 1941) Frank, J, Law and the Modern Mind (New York, Brentano’s, 1930) Freeman, K, Ancilla to Pre-Socratic Philosophers: A Complete Translation of the Fragments in Diels, Fragmente der Vorsokratiker (Oxford, Blackwell, 1948) Freeman, M and Lewis, A (eds) Law and Literature, Current legal Issues Volume 2 (Oxford: Oxford University Press, 1999) Freeman, MDA (ed), Current Legal Problems 2000: Volume 53 (Oxford, Oxford University Press, 2000) Frost, MH, Introduction to Classical Legal Rhetoric: A Lost Heritage (Aldershot, Ashgate, 2005) Fulgentius, Fabius Planciades, Mitologiarum. Gaakeer, J, Hope Springs Eternal: An Introduction to the Work of James Boyd White (Amsterdam, Amsterdam University Press, 1998) Gadamer, H-G, Truth and Method (1960) (trans J Weinsheimer and DG Marshall) 2nd revsd edn (London, Continuum Books, 2004) Gager, VL, Shakespeare and Dickens: The Dynamics of Influence (Cambridge: Cambridge University Press, 1996) Getzler, J, (ed), Rationalizing Property, Equity and Trusts (London, LexisNexis, Butterworths, 2003) Gibbon, E, The History of the Decline and Fall of the Roman Empire (1776–1778) Goatly, A, The Language of Metaphors (London and New York, Routledge, 1997) Goodhart, AL, and Hanbury, HG, (eds), Essays in Law and History by Sir William S Holdsworth (Oxford, Clarendon Press, 1946) Goodrich, P, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London and New York, Routledge, 1996)

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Bibliography Gorgias, Epitaphios, fragment Diels-Kranz 82B6 (H Diels and W Kranz Die Fragmente der Vorsokratiker (6th revsd edn (Kranz ed) (Berlin, Weidmann, 1952)) Gottwald, P, Münchner Kommentar zum BGB, 2a 4th edn (Munich, CH Beck, 2003) Gouge, W, Domesticall Duties (London, 1622) Gray, K and Gray, SF, Land Law 5th edn (Oxford, Oxford University Press, 2007) Grey, TC, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge, Mass, Harvard University Press, 1991) Grimm J and Grimm W, Kinder und Hausmärchen (1812) (‘Grimms’ Fairy Tales’) (London, Penguin, 1996) Guy, J, Christopher St German on Chancery and Statute (London, Selden Society, 1985) Hackney, J, Understanding Equity and Trusts (London, Fontana, 1987) Haig, B, Metaphor and Reason in Judicial Opinions (Southern Ill. U. Press 1992) Halliwell, M, Equity & Good Conscience in a Contemporary Context (2nd edn) (London, Old Bailey, 1997) Halliwell-Phillipps, JO, Outlines of the Life of Shakespeare 7th edn (London, Longmans, Green, 1887) Harding, A, The Law Courts of Medieval England (London, Allen & Unwin, 1973). Harmon, AG, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays (Albany, State University of New York Press, 2004) Hart, HLA, The Concept of Law (Oxford, Clarendon Press, 1961) Harvey, WJ, ‘Bleak House’, Character and the Novel (London, Chatto and Windus, 1965) Hawes, S, ‘Example of Virtue’ (c.1503–4) in JM Berdan, Early Tudor Poetry (New York, Macmillan, 1931) Hawkes, T, Metaphor (London, Methuen, 1972) Hayford, H and Sealts Jr, M M, (eds), Billy Budd, Sailor: An Inside Narrative - The Definitive Text (Chicago, University of Chicago Press, 1962) Hegel, GWF, ‘The Spirit of Christianity’ in TM Knox (trans) and R Kroner (introduction), GWF Hegel: Early Theological Writings (Philadelphia, University of Pennsylvania Press, 1971) Helmholz, R and Zimmermann, R, (eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (Berlin, Duncker and Humblot, 1998) Herrick, MT, Comic Theory in the Sixteenth Century (Urbana, Ill, University of Illinois Press, 1950) Heschel, AJ, Heavenly Torah (G Tucker with L Levin eds and trans (New York, Continuum, 2005)) Hewart, G, Essays and Observations (London, Cassell, 1930) Highet, G, The Classical Tradition: Greek and Roman Influences on Western Literature (New York, Oxford University Press US, 1949) Holdsworth, WS, An Historical Introduction to the Land Law (Oxford, Clarendon Press, 1927) Charles Dickens as a Legal Historian (New Haven, Yale University Press, 1928) History of English Law 7th revsd edn (AL Goodhart and HG Hanbury eds) (London, Methuen, 1956–1972) Holmes, OW, Oliver Wendell Holmes: Collected Legal Papers (New York, Harcourt, Brace and Howe, 1920) The Common Law (1881) (Stilwell, KS, digireads.com, 2005) Homer, The Iliad (trans S Butler) (London, Longmans, Green, and Co, 1898)

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Bibliography Honan, P, Shakespeare: A Life (Oxford, Oxford University Press, 1998) Honigmann, EAJ, The Stability of Shakespeare’s Text (London, Edward Arnold, 1965) Honigmann, EAJ and Brock, S, Playhouse Wills, 1558–1642: an Edition of Wills by Shakespeare and his Contemporaries in the London Theatre (Manchester, Manchester University Press, 1993) Hood Phillips, O, Shakespeare and the Lawyers (London, Methuen, 1972) Hooker, Richard, The Laws of Ecclesiastical Polity (reproduced in The Works of that Learned and Judicious Divine, Mr. Richard Hooker (Oxford, Clarendon Press, 1850)) Horace, De Arte Poetica (trans C Smart) The Works of Horace (Edinburgh, Stirling & Slade, 1819) Hotson, L, Shakespeare’s Sonnets Dated (London, R Hart-Davis, 1949) Howard, G, Wolsey, the Cardinal, and His Times: Courtly, Political, and Ecclesiastical (London, Sherwood, Jones and Co, 1824) Hudson, J, The Formation of the English Common Law (London, Longman, 1996). Hutson, L, Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, Oxford University Press, 2007) Ibbetson, D, A Historical Introduction to the Law of Obligations (Oxford, Oxford University Press, 1999) Ingham, P, Dickens, Women and Language (New York, London and Sydney, Harvester Wheatsheaf, 1992) Irving, H, The Drama: Addresses by Henry Irving (London, William Heinemann, 1893) Jackson, B, Law, Fact and Narrative Coherence (Liverpool, Deborah Charles, 1988) Jacques, ET, Charles Dickens in Chancery: Being an Account of His Proceedings in Respect of the ‘Christmas Carol’ with Some Gossip in Relation to the Old Law Courts at Westminster (London, Longmans, Green and Co, 1914) Jaffey, P, Private Law and Property Claims (Oxford, Hart Publishing, 2007) Jolowicz, HF, Historical Introduction to the Study of Roman Law (Cambridge, Cambridge University Press, 1954) Jones, JW, Historical Introduction to the Theory of Law (Oxford, Clarendon Press, 1940) The Law and Legal Theory of the Greeks (Oxford, Clarendon Press, 1956) Jones, WJ, The Elizabethan Court of Chancery (Oxford, Clarendon Press, 1967) Jordan, C and Cunningham, K, (eds), The Law in Shakespeare (Basingstoke, Palgrave Macmillan, 2007) Joseph, L, Lawyerland: What Lawyers Talk About When They Talk About Law (New York, Farrar Straus and Giroux, 1997) Justinian, Institutionum (trans JB Moyle) (Oxford, Oxford University Press, 1913) Kahn, V and Hutson, L (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) Kahn, V, Wayward Contracts: The Crisis of Political Obligation in England 1640–1674 (Princeton, Princeton University Press, 2004) Kames, HH, Principles of Equity (1760) (Edinburgh, Bell & Bradfute, 1825) Keeton, GW, Shakespeare’s Legal and Political Background (London, Pitman, 1967) Kezar, D (ed), Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame, IN, University of Notre Dame Press, 2007) Kipling, Rudyard, From Sea to Sea and Other Sketches, Letters of Travel (New York, Doubleday, 1889)

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Bibliography Kirschenbaum, A, Beyond Equity: Halakhic Aspirationism in Jewish Civil Law Library of Jewish Law and Ethics vol XVIII (New Jersey, Hoboken, 1991) Kiss, G, Science of Legal Method: Selected Essays (Boston, Boston Book Company, 1917) Kitton, FG, The Life of Charles Dickens: His Life, Writings and Personality (Colchester, Lexden, 2004) Knafla, LA, Law and Politics in Jacobean England: the Tracts of Lord Chancellor Ellesmere (Cambridge, Cambridge University Press, 1977) Knight, WN, Shakespeare’s Hidden Life: Shakespeare at the Law 1585–1595 (New York, Mason & Lipscomb, 1973) Knox, TM, (trans) and Kroner, R, (introduction), GWF Hegel: Early Theological Writings (Philadelphia, University of Pennsylvania Press, 1971) Kott, J, Shakespeare Our Contemporary (London, Methuen, 1965) Krause, SR, Civil Passions: Moral Sentiment and Democratic Deliberation (Princeton, Princeton University Press, 2008) Lakoff, G and Johnson, M, Metaphors We Live By (Chicago, University of Chicago Press, 1980) Lamb, C, The Complete Works and Letters of Charles Lamb, The Essays of Elia, The Old Benchers of the Inner Temple (New York, Random House, 1935) Lambarde, W, Archeion, or, A discourse upon the high courts of justice in England (1591, revsd 1598) (London, printed by E P[urslowe] for Henry Seile, dwelling at the Tygers-head in St Paul’s Church-yard, 1635) Lane, FC, Venice, A Maritime Republic (Baltimore, Johns Hopkins University Press, 1973) Lang, Andrew, The Red Fairy Book (1890) Langland, E, Nobody’s Angels: Middle-class Women and Domestic Ideology in Victorian Culture (Ithaca, Cornell University Press, 1995) Lanni, A, Law and Justice in the Courts of Classical Athens (Cambridge, Cambridge University Press, 2006) Larson, JL, Dickens and the Broken Scripture (Athens, University of Georgia Press, 1985) Lawrence, DH, Studies in Classic American Literature (New York, Viking Press, 1922) Lawson, FH, The Rational Strength of English Law (London, Stevens and Sons, 1951) Leavis, FR and Leavis, QD, Dickens: The Novelist (London, Chatto & Windus, 1970) Lee, Harper, To Kill a Mockingbird (Philadelphia, JB Lippincott & Co, 1960) Leigh, S, Leigh’s New Picture of London (London, Samuel Leigh, 1819) Levin, SR, Metaphoric Worlds: Conceptions of a Romantic Nature (New Haven, Yale University Press, 1988) Little, AG, Grey Friars in Oxford (Oxford, Oxford Historical Society, 1892) Locke, J, Questions on the Law of Nature (1664) in W von Leyden e(d), John Locke: Essays on the Law of Nature and Associated Writings (Oxford, Clarendon Press, 1954) (2007 reprint) Two Treatises of Government (1689) in P Laslett (ed), John Locke, Two Treatises of Government (Cambridge, Cambridge University Press, 1963) London, E, ‘The Law in Literature’ and ‘The Law as Literature’ in The World of Law (New York, Simon & Schuster, 1960) Lowell, JR, The Writings of James Russell Lowell (Boston, Houghton, Mifflin and Co, 1890) Lucan, Pharsalia (known as De Bello Civili, ‘The Civil War’) Macmillan, HP, Law & Other Things (Cambridge, Cambridge University Press, 1937)

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Bibliography Arethusa (1820) Sheppard, S (ed), The Selected Writings and Speeches of Sir Edward Coke vol II (Indianapolis, Liberty Fund, 2003) Sherfield, H, Reading on the Statute of Wills (Lincoln’s Inn, 1623) Shibles, WA, An Analysis of Metaphor in the Light of WM Urban’s Theories (The Hague, Paris, Mouton, 1971) Simmonds, N, Law as a Moral Idea (Oxford, Oxford University Press, 2007) Simpson, AWB, A History of the Common law of Contract (Oxford, Oxford University Press, 1987) An Introduction to the History of the Land Law 2nd edn (Oxford, Clarendon Press, 1986) Smeaton, WHO, (ed), English Satires (London, 1899) Solomon, JR and Martin, CG (eds), Francis Bacon and the Refiguring of Early Modern Thought: Essays to Commemorate the Four Hundredth Anniversary of the Advancement of Learning (1605–2005) (Aldershot, Ashgate, 2005) Sommerville, JP, Politics and Ideology in England 1603–1640 (London, Longman, 1986) Spedding, J, Ellis, RL, and Heath, DD, (eds), The Works of Francis Bacon (14 vols) (London, Longmans, 1857–74) Spence, G, The Equitable Jurisdiction of The Court of Chancery (in two volumes) (Philadelphia, Lea and Blanchard, 1846) Staves, S, Married Women’s Separate Property in England (Boston, Mass, Harvard University Press, 1990) Sterne, Laurence, A Sentimental Journey through France and Italy (1767) Stevens, RB, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill NC, North Carolina University Press, 1983) Stevens, Wallace, Opus Posthumous (London, Faber & Faber, 1959) Storey, G, Charles Dickens: Bleak House Landmarks of World Literature (Cambridge, Cambridge University Press, 1987) Stuart, James (King James VI of Scotland), Basilikon Doron or His Majesties Instrvctions To His Dearest Sonne, Henry the Prince (Edinburgh, 1599) (reprinted London, R Field for I Norton, 1603) Sugden, EB, Gilbert on Uses (London, W Reed, 1811) Swift, Jonathan, Gulliver’s Travels (1726) (London, Penguin Popular Classics, 1994) Tacitus, The Annals of Imperial Rome (trans M Grant 1956) revsd edn (London, Penguin, 1996) Taylor, G and Jowett, J, Shakespeare Reshaped, 1606–1623 (Oxford, Clarendon Press, 1993). Tennyson, GB, (ed), A Barfield Reader: Selections from the Writings of Owen Barfield (Middletown CT, Wesleyan University Press, 1999) Thaler, RH, and Sunstein, CR, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven, Yale University Press, 2008) Thomas, B, Cross-examinations of Law and Literature: Cooper, Hawthorne, Stowe & Melville (New York, Cambridge University Press, 1987) Tiley, J (ed), Studies in the History of Tax Law (Oxford, Hart Publishing, 2004) Tillyard, EMW, Shakespeare’s History Plays (London, Chatto & Windus, 1956) Tucker, P, Law Courts and Lawyers in the City of London 1300–1550 (Cambridge, Cambridge University Press, 2006) Turner, RW, Equity of Redemption: Its Nature, History and Connection with Equitable Estates Generally (Cambridge, Cambridge University Press, 1931)

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Bibliography Udall, J, Diotrephes (The state of the Church of Englande laide open in a conference betweene Diotrephes a bishop, Tertullus a papist . . . etc) (London, R Waldegrave, 1588) Urmson, JO and Warnock, GJ, (eds), JL Austin: Philosophical Papers 3rd edn (Oxford, Clarendon Press, 1979) Van Rhee, CH, (ed), The Law’s Delay: Essays on Undue Delay in Civil Litigation (Antwerp, Intersentia, 2004) Virgil, The Aeneid (trans J Dryden) Visconsi, E, Lines of Equity: Literature and the Origins of Law in Later Stuart England (Ithaca NY, Cornell University Press, 2008) Voltaire (Franois-Marie Arouet Voltaire), Candide ou l’optimisme (1759) Ward, I, Shakespeare and the Legal Imagination (London, Butterworths, 1999) The English Constitution: Myths and Realities (Oxford, Hart Publishing, 2004) Law and Literature: Possibilities and Perspectives (Cambridge, Cambridge University Press, 1995) Shakespeare and the Legal Imagination (Cambridge, Cambridge University Press, 1999) Watt, G, Trusts and Equity 3rd edn (Oxford, Oxford University Press, 2008) Watts, CT, (ed), The Merchant of Venice (Ware, Wordsworth Classics, 2000) Weisberg, RH, Poethics: And Other Strategies of Law and Literature (New York, Columbia University Press, 1992) The Failure of the Word: The Lawyer as Protagonist in Modern Fiction (New Haven, Yale University Press, 1989) Wells, S, (ed), Shakespeare Survey: Shakespeare and The Globe vol 52 (Cambridge, Cambridge University Press, 1999) West, W, The Second Part of Symboleography (1593) (London, Miles Flesher and Robert Young, 1641) Whetstone, George, The right excellent and famous historye, of Promos and Cassandra deuided into two commicall discourses etc (London, printed by John Charlewood for Richarde Jones, 1578) White, JB, The Edge of Meaning (Chicago, University of Chicago Press, 2001) Heracles’ Bow: Essays on the Rhetoric and Poetics of Law (Madison, University of Wisconsin Press, 1989) Justice as Translation (Chicago, University of Chicago Press, 1990) Living Speech: Resisting the Empire of Force (Princeton, Princeton University Press, 2006) The Legal Imagination: Studies in the Nature of Legal Thought And Expression (Boston, Little, Brown, 1973) White, RS, Natural Law in English Renaissance Literature (Cambridge, Cambridge University Press, 1996) Whitman, JQ, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, Yale University Press, 2008) Williams, M, Secrets and Laws – Collected Essays: True Tales of Law, Ethics and Literature (London, UCL Press, 2005) Wilson, L, Theaters of Intention (Palo Alto, Ca, Stanford University Press, 2000)

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Bibliography Winter, SL, A Clearing in the Forest: Law, Life and Mind (Chicago, University of Chicago Press, 2001) Worthington, S, Equity (Oxford, Clarendon Press, 2003) Yale, DEC, Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge, Cambridge University Press, 1965) Ziegler, P, The Black Death (London, Collins, 1969) Zimmermann, R and Whittaker, S (eds), Good Faith in European Contract Law, The Common Core of European Private Law Project (Cambridge, Cambridge University Press, 2000)

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Index

absolute owners/ownership, 24, 104, 117–18, 123 abstract fiction, general law as, 137, 139–40 abstractions, 136–8, 143–4, 146, 167, 191, 222 prosaic, 136, 149, 166, 228 reductive nature, 139–41 abuse, instrument of, 33–4, 82 abuses, 6, 33, 35–6, 85, 105–6, 119, 182 accidents, 85, 155–6 Ada Clare see Clare, Ada (character) administration of justice, 45, 60, 184 aequitas, 77, 100, 104 agreements, 2, 90–2, 110, 127–8 oral, 90–2, 110–11 akribodikaios, 29, 32, 103, 182, 185–6, 215–16, 238 see also sticklers for rights Allen, CK, 5, 41, 129, 232 allusion, Shakespearean, 174, 204 Alpheus (myth), 158–9, 188 ambiguity, 38, 107, 224–5 Amphion (myth), 154 Angelo (character), 20, 32, 73, 218–21, 243 Anglo-Saxons, 119, 121–2 Antonio (character), 32, 163, 197, 205, 216 arbitration, 29 Archeion, 56, 78, 92, 202, 240 architect, 43, 155 architectural metaphors, 153, 156 Arethusa (myth), 159 Aristotle, 7, 25–9, 135–6, 143, 156, 199, 239 art: of equitable judgment, 19, 247 of equity, 11, 155, 245 Artegall (character), 166, 181 arts, equitable, 5, 89, 148, 178 Ashburner, W, 158–60 assets, 15, 91, 96, 98–9, 117, 122, 150–1 assurances, 104–5, 110 Athens, 26–8, 114 Timon of, 25, 106–7, 114–15, 223 Atkin, Lord, 24–5, 80 Auden, WH, 176–7

Bartleby, 40, 238–9 Basilikon Doron 73, 75, 214 Bassanio (character), 215 Bate, J, 197, 224 Battle of Life, The, 62–3, 83 Beal, TK, 178 beauty, 118, 132, 146, 194 behaviour, 13, 24, 38, 107–9, 112, 156, 229 see also unconscionable conduct bending without breaking, 88–9 beneficial ownership, 91, 234 beneficiaries, 23, 39, 112, 117–20, 122–3, 129, 165 Bentham, J, 23, 40–1, 56, 132, 181 bespoke shoe metaphor, 137, 152 better justice, 2, 78, 87, 96, 133, 230–2, 236 Bible, 23, 71, 74, 158, 175, 178, 214 birds, 17–18, 57–9, 79, 112, 152, 237, 246–7 caged, 57–9, 112, 162, 172 Blackstone, W, 47–8, 99, 121, 132, 157 Bleak House, 47–8, 55–66, 79, 169–94, 236–40 blood, laws for the, 215, 247 Boardman v Phipps, 128–9 Bodin, J, 136 bona fide purchaser, 116, 124 Book of Common Prayer, 177–9 Book of Esther, 175, 177–8, 180, 194 bounds, 89, 108, 154, 156, 161, 241 Boythorn, Lawrence (character), 59, 182, 247 Bridge, Lord, 127–9 bridle, 103, 176, 210, 213 Brontë, Charlotte, 38, 169 Burns v Burns, 126–7 Butt, J, 59, 63

Bacon, Francis, 35–6, 44, 74, 92–3, 121, 158, 208 balance, 131, 163, 165–6, 245 see also scales Barfield, O, 2, 138, 145 bars, 22, 56–7, 59, 192, 231, 246

caged birds, 57–9, 112, 162, 172 cages, 17–18, 57–9, 112, 152, 155, 227, 246–7 Candide, 128–9 canon: Biblical, 178 Law, 65 Law and literature, of 25 carcer, 56–7 Carey, C, 28, 212 Carstone, Richard (character), 49, 51, 57–8, 193, 202, 213, 242–3 caterpillars, false, 223 Chadband (character), 188 Challinor, W, 61, 63–6

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Index Chambers, R, 150–1 chancellor, 48–54, 56–7, 62, 69–70, 100, 106, 204 see also Lord Chancellors chancellor’s court, 55, 62, 67, 94, 217 chancellor’s foot, 79–80, 157 chancery: cage, 58, 79 court of see Court of Chancery doctrine, 104–13 see also equitable doctrine equity, 65, 79, 83–4, 93, 96, 214–15, 217–18 equity captured in, 48–67 ‘in chancery’, 47–82, 192 jurisdiction, 51, 209 language, 131–2 future of, 84–104 trusts, 117, 121–2, 204–5 wards in, 57, 63 character, equitable, 25, 28–31, 103, 182, 188, 191, 215 character of equity, 19, 26–36, 39 charge, 13–14, 31, 130–1, 144 charity, 7–8, 23, 38–9, 85, 207, 229 children, 2–3, 80–1, 89, 97, 109–10, 117, 186–7 Christian mercy, 214–15, 221 Church of England, 29, 72, 122, 163, 178 Cicero, 21, 77, 147 CIN Properties Ltd v Rawlins, 189 Clare, Ada (character), 57–8, 162, 176, 190, 192–3, 243 Claudio (character), 32, 218–21, 224, 243 clean hands, 61, 94, 234 clemency, Senecan, 214–15 cliché, 3, 145, 198, 239 clouds, 38, 173–5 Coke, Sir Edward, 24, 49, 68–9, 72, 123, 218–19, 241 Coltman v Bibby Tankers Ltd, 139 Comedy of Errors, 195, 198–9, 201, 214 common law, 51–2, 67–8, 78–80, 84–91, 94–5, 102–3, 106–8 courts, 33, 47, 65–6, 68, 78, 103, 240–1 judges, 68–9, 72, 76, 78, 106 jurisdictions, 6, 11–12, 23, 80 language, 86, 89 rules, 87–8, 240 compensation, 139–40, 228 conduct, 33, 86, 106, 108–11, 126 customary, 108, 110–11 unconscionable, 85, 89, 107–8 conscience, 33, 48–9, 51–5, 67–71, 106–7, 109–11 courts of, 55, 66 king’s, 48–9, 52–4, 213–14, 219 language of, 107, 217 personal, 70, 107, 12 see also unconscionability

constructive trusts, 126–8 contributions: direct financial, 126–7 non-financial, 140–1 conversion, 98–9, 173, 177, 203, 217 conveyance of land, 148, 205, 231 Cottenham, Lord Chancellor, 59–60, 88 court, chancellor’s, 55, 62, 67, 94, 217 Court of Appeal, 12, 20, 77, 81, 89, 126, 139 Court of Chancery, 47–50, 55–6, 60–6, 69, 72, 180, 240–1 courts: common law, 33, 47, 65–6, 68, 78, 103, 240–1 of conscience, 55, 66 ecclesiastical, 121 of equity, 20, 47, 65, 78–9, 82, 84, 113 covenants, 88, 122, 198, 238 restrictive, 88–9, 190 Cowcher v Cowcher, 80–1 creations, equitable, 11, 78, 231 creditors, 100, 130–1, 176, 191 culture, 14–16, 21, 26–7, 31, 35, 51, 68 customary conduct, 108, 110–11 damages, 30, 91, 97, 113, 164, 229, 231 Daniel, S, 32, 61–2, 103, 157 Dapplegrim, 15 debtors, 131, 190–1 debts, 3, 67, 100, 106, 121, 199, 201 deconstruction, 136, 171, 246 Dedlock, Lady (character), 59, 180, 186–7, 238 Dedlock, Sir Leicester (character), 59, 103, 180, 182, 185–6, 243 defences, 26, 70, 111, 143, 147–8, 184 Demetrius, 142–3, 147–8 Denning, A (Lord), 19–21, 41–2, 64–5, 80–2, 127, 162, 244–5 denunciatio evangelica, 120–1 Dickens, Charles, 55–66, 83–4, 169–94, 239–43 see also individual books and characters Dickens v Lee, 62–3 dikaios, 220, 229 Dimes v Grand Junction Canal Company, 59–60 Diplock, Lord, 81, 159–60, 164 direct financial contributions, 126–7 discretion, 10, 23, 86–7, 91, 132, 149, 164–5 disguises, 14, 75, 176, 182, 191, 195, 197 distinct jurisdiction, 51–2, 70 doctrine(s): chancery, 104–13 equitable, 17, 104, 106, 149–51, 204 documentary formalities, 34, 65, 79, 100 documentation, formal, 2, 33, 65, 91–2, 101 Dolin, K, 17, 170, 199 domestic goddess: Summerson, Esther (character) as, 191–3 downtrodden equity, 206–7

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Index Duke (character), 73, 75, 199, 215–16, 218, 220–1 Duke of Norfolk’s case, 24 duties, 35–6, 80, 128, 139, 165, 243 fiduciary, 121, 127–9, 133 juridical, 35, 229

equitable title, 116, 122, 235 equity: see also epieikeia captured in chancery, 48–67 chancery, 65, 79, 83–4, 93, 96, 214–15, 217–18 character of, 19, 26–36, 39 contingent nature of, 31, 231 courts of, 20, 47, 65, 78–9, 82, 84, 113 doctrines of see chancery, doctrine; equitable doctrine(s) downtrodden, 206–7 emotive, 183, 212–13 and Falstaff, 207–11 female, 179–83 figures of, 167, 170, 179, 221 figuring, 135–68 future, 244–5 gap, 10, 32, 34 see also gaps intervention of see equitable intervention juridical, 90–1, 97–8, 102–3, 106–7, 170–1, 229, 231 limits, 246–8 metaphors of, 151–66 multiple meanings of, 36–41 nature of, 8, 77, 149, 153, 220, 239 new, 29, 41–2, 64, 79–83, 89, 244 outlaw, 231–7 personification of, 166–8 picture of, 38, 227, 230 and precedent, 76–9 pretence of, 227–48 private, 128–9 rational, 214 of redemption, 14, 130, 204 remedial, 8–10 royal, 207 Shakespeare’s, 195–225 use of word, 206–7 of the statute, 5–7 stirring, 4, 104, 123, 160, 183–4, 186, 211–13 of Summerson, Esther (character), 169–94 true, 83–4, 90, 102, 170–1, 217, 231, 242 yokefellow of, 76, 206 equivocation, Shakespeare, 223–4 Erasmus, 4, 54 Escalus (character), 73, 219–21 estates, 14, 24, 31, 119–20, 130–1, 137–8, 188 separate, 180 Esther, Book of, 175, 177–8, 180, 194 Esther (character) see Summerson , Esther (character) Esther, Queen, 175–6, 180, 194 estoppel, 104–6 proprietary, 34, 104–5, 108, 110, 128 ethics, 1, 4–5, 9, 37, 40, 42, 88 Nichomachean, 27–9, 135, 199

Earl of Oxford’s case, 67–76, 78, 204, 217 ecclesiastical courts, 121 economic languages, 37, 40 education, 31, 36, 42–2, 45, 59, 92, 228, 247 Egerton, Sir Thomas, 32–3, 62, 103, 157 see also Ellesmere, Lord Chancellor Eldon, Lord Chancellor, 62, 234 election, 94, 203–4, 217 Ellesmere, Lord Chancellor, 33, 69–73, 75, 103, 157, 201, 209 see also Egerton, Sir Thomas emotive equity, 183, 212–13 Empson, W, 224–5 Endicott, TAO, 38, 48, 71, 227, 235 enforcement, 69, 86, 88, 97, 185, 220, 229 strict, 38, 69, 86, 128, 219 enrichment, unjust, 108, 128, 150–1 entitlements, 3, 6, 29–30, 33, 35, 227–8, 236–8 proprietary, 110, 138, 234–5 epieikeia, 4, 18–19, 27–9, 31–2, 36, 199, 229 see also equity equality, 36, 40–1, 96, 100, 153, 164–6, 229–30 ‘equality is equity’, 96 eques, 104 equitable art, 5, 89, 148, 178 see also art (of equitable judgment) and art (of equity) equitable character, 25, 28–31, 103, 182, 188, 191, 215 equitable creations, 11, 78, 231 equitable doctrine(s), 17, 90, 94, 104–6, 204 see also chancery, doctrine metaphors as, 149–51 equitable innovation see innovation equitable interest, 31, 90, 96–7, 105, 112, 116–17, 126 equitable intervention, 2, 8, 34, 36, 106, 108–9, 186 equitable judgment, 19, 31, 179, 247 equitable jurisdiction, 48, 67, 70, 95, 100, 106, 121 equitable justice, 69, 129, 166, 222 equitable language, 1, 85–6, 89, 131–2, 248 see also chancery, language equitable maxims see maxims equitable ownership, 117, 124 equitable property, 90–1, 111, 116–17, 125, 203, 235 equitable reading, 4–8 equitable remedies, 91, 113–16, 126 equitable restraint see restraint

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Index ethos, 9, 17, 38, 40, 44, 47, 84 Eves v Eves, 81 eviction, 13–14, 33, 81, 108, 189 excursion, 1–45, 229–30 experience, 13, 29, 62, 142, 219, 245 human, 223–4 experts, 218–19, 229–30 extremity, 54, 70, 72, 75, 148, 185, 210 Eyre, Jane (character), 38 Eyston v Studd, 5 fair opportunity, 36 Falstaff (character), 197, 207–11, 231, 239 family names, 171–2 fashion, 76–9 fathers, 3, 33, 106, 178, 201, 215–16, 239–40 fee simple, 14, 130–1, 138 fees, 58, 83 fees (feudal), 123 female equity, 179–83 see also personification of equity fiction(s), legal, 2, 14, 17, 130, 132, 138, 141 fiduciary duties, 121, 127–9, 133 figures of equity, 167, 170, 179, 221 see also figuring equity figuring equity, 135–68 financial contributions, 126–7 flesh, 32, 99, 136, 163, 197, 201 Flite, Miss (character), 57–9, 79 fluvial metaphor see potamic metaphor fog, 64, 97, 142, 175, 178, 237, 241 fool, 54–5, 62, 75, 206, 221 foot, chancellor’s, 79–80, 157 form, 14–16, 21, 99–101, 123–5, 171–2, 210, 215–17 formal documentation, 2, 33, 65, 91–2, 101 formalism, 3, 20, 195, 198 formalities, 10, 33–4, 65, 92, 167, 170, 210 documentary, 34, 65, 79, 100 legal, 36, 108, 198 Fortier, M,166 Foskett v McKeown, 141 Frost, MH, 146–7, 161–2 Fulgentius, Bishop, 158–9 fusion, 60, 160 future of equity, 244–5 gaps, 9–10, 31–2, 123, 155–6, 244–5, 247 see also equity gap general law, 1–2, 8, 79–80, 135–7, 145–6, 160, 227–8 as abstract fiction, 137–40 of contract, 114 general rules, 2–3, 8, 31, 113, 148–9, 162, 229 generality, 3, 9–10, 27, 31, 231 gifts, 2, 53, 58, 151, 162, 191–2, 215 Gillett v Holt, 104–6 gnomé, 19

God, 31, 48–9, 73, 92, 153–4, 156, 178–9 servant of, 21–2 good faith, 11, 51, 68, 85 purchasers, 116 Goodhart, AL, 16, 41, 56, 84, 130 Goodrich, P, 10, 54–5 Grand Junction Canal Company v Dimes, 59–60 Grand Remonstrance, 241 green spot, 83–5, 88, 107, 119, 133 Grimms’ Fairy Tales, 57–8, 117 ground, level, 153, 157, 161, 163, 177 groundlings, 196, 217 Guy Mannering, 43 Hadassah, 177 Hal, Prince (character), 207, 209, 231 Hamlet, 114, 116, 195, 198, 223 Hanbury, HG, 9, 41, 84, 130 Hand, BL, 43–4, 155 Hard Times, 40, 165–6 harm, 2–3, 10, 33, 35–6, 87, 176, 228–30 hamarte¯ma (hamartia), 27, 198–199 Heard v Stamford, 20, 78 heaven, 64, 141, 146, 216 Hebrew , 153, 175, 177, 178 heirs, 2, 50, 121–2 hell, 64, 182 Helmholz, R, 112, 118, 120–1, 123 Henry II, 48 Henry IV (king and play), 75, 206–7, 209–11, 213, 241 Henry, Prince, 73, 207–8, 211 see also Hal, Prince Henry V (king and play), 50, 52–4, 173, 207, 213, 230–1 see also Hal, Prince Henry VI (king and play), 55, 69, 206–7, 210, 220, 223 Henry VIII, 49, 54, 67, 72, 122, 196, 207 heraldry, 73–5 hermeneutical tradition, 4, 35 see also equitable reading, 4–8 highway robbery, 206–7, 209 history, 5, 9, 16, 41, 43, 54, 120–1 Hoffmann, Lord, 21–2, 148, 165 Holdsworth, WS, 9, 49, 60, 63, 84, 121, 123–4 Holmes, OW, 13, 43, 52, 145 homecoming, 237–40 Homer, 27, 43, 142–3 home, 14, 81, 110, 119, 143–4, 222, 237–9 Hooker, R, 227 Horace, 68, 151, 155 horse and rider, 103, 210–11, 213, 220, 227 House of Lords, 5–6, 12–13, 20, 22, 31, 77, 129 house, 237–40 see also Bleak House Howards End, 98, 144

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Index human relations, 125, 137, 227–8 Human Rights Act, 6, 35 humane, 16–26, 112, 201 humanities, 10, 16–26, 41–4 humility, 8, 87–8, 161 husbands, 57, 99–100, 109, 179–80, 230 Hutson, L, 5, 65, 100, 111, 114, 167, 199

judgment, 11–12, 19–20, 70, 80–1, 163–5, 184, 222–3 equitable, 19, 31, 179, 247 judicial discretion see discretion Juniper Tree, The, 117 juridical duties, 35, 229 juridical equity, 90–1, 97–8, 102–3, 106–7, 170–1, 229, 231 juries, 68–9, 111 jurisdiction: chancery, 51, 209 chancellor’s distinct, 51–2, 70 equitable, 48, 67, 70, 95, 100, 106, 121 jurisdictions, 6, 11, 23, 37, 52, 86, 158 common law, 6, 11–12, 23, 80 jurisprudence, 10, 37, 118–19, 133, 146, 164, 247 justice, 25–30, 38–41, 67–77, 95–6, 219–22, 228–31, 244–6 administration of, 45, 60, 184 better, 2, 78, 87, 96, 133, 230–2, 236 equitable, 69, 129, 166, 222 natural, 82, 221 perfect, 1, 28, 32, 88 Justinian, 18, 100, 121

idealism, 31, 95, 98, 154, 232–3 images, 17–18, 57, 61, 64, 159–60, 162–3, 165 imagination, 5, 16, 18, 20, 133, 159, 183 impartiality, 87 Shakespeare’s, 222–5 imprisonment, 47, 52, 67 see also incarceration; prison(s) in chancery see chancery, in in fictione juris consistit aequitas, 132–3 in trust see trust(s), in incarceration, 47, 57, 78 see also imprisonment; prison(s) indulgence, equitable, 127–8 inequitable characters, 185, 215 informal trusts, 82, 117 information, 138–9 injunctions, 52, 60, 69, 72, 90, 113–14, 161 injustice(s), 33, 62, 80–1, 88, 169–70, 193, 241 innovation, 18, 80, 82, 88, 180, 199, 211–12 equitable, 82, 88, 199 instrument of abuse, law as, 33–4, 82 intellectual property, 138–9, 142 intended recipients, 150–1 intent, 54, 72, 94, 114, 136 intention, 5, 15, 29, 33, 39, 88, 114 interest, equitable, 31, 90, 96–7, 105, 112, 116–17, 126 interpretation, 11, 47, 85, 135, 158–9, 171, 208 equitable, 6, 17, 34 intervention, equitable, 2, 8, 34, 36, 106, 108–9, 186 intuition, 39, 87 invasion, 52–3, 173 Ishtar, 177 Isis, 181

Kahn, V, 5, 95, 100, 114, 144, 199, 242 Kames, Lord, 8, 113, 170 Kate (character), 195, 197 keeper of the king’s conscience, 48, 52, 54 King . . . (plays) see under Henry; under names of kings (e.g. Henry V) king’s conscience, 48–9, 52–4, 219 Knight of Justice see Artegall Knight, WN, 201–2, 213–14, 218 knowledge, 33, 107, 109 labels, 21–2, 42, 101–2, 171, 197, 237 partial, 3–4 laches, 94 lamb, shorn, 162–3 Lambarde, W, 56, 78, 92, 240 land, 12–15, 33–4, 67–8, 108–10, 120, 122, 126–7 conveyance of, 148, 205, 231 law, 89, 120–1, 124, 137, 203 sale of, 34, 92, 101, 110 landowners, 2, 33, 105, 113 Langdell, CC, 10 language, 7–8, 84–6, 131–2, 147–9, 152–3, 237, 246–7 chancery, 84–104, 131–2 see also language, equitable common law, 86, 89 of conscience, 107, 217 economic, 37, 40 equitable, 1, 85–6, 89, 131–2, 248 see also language, chancery

Jaffey, P, 231–2 James, King, 73, 204, 208, 213–14 Jane Eyre, 38 Jarndyce and Jarndyce (fictional case), 47, 57–8, 61, 94, 169–70, 172–3, 242–3 Jarndyce, John (character), 47, 59, 171–2, 174, 188, 190–2, 194 Jews, 176–7, 195–6, 215–16 Jo (character), 188, 190–1, 237, 239 John, King, 202, 206–7, 210, 212 Jorinda and Jorindel, 58 judges, 11–12, 19–26, 67–8, 87, 150–7, 218–20, 242–5 common law, 68–9, 72, 76, 78, 106

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Index legal, 2, 19–20, 22–3, 85–6, 184–5, 246 Shakespeare’s, 200–6 metaphorical, 147, 149 law: general, 1–2, 8, 79–80, 135–7, 145–6, 160, 227–8 and humanities, 16–26 routine, 83, 102, 136, 231–2 Law of Property Act, 31, 34, 91, 130–1, 138, 206 law schools, 41–3 see also legal education laws for the blood, 215, 247 laws of nature, 35, 135, 153, 156 lawyers, 3–4, 21–3, 42–4, 83, 85–6, 200–2, 223 see also solicitors leaden rule, 28, 153, 156–7, 200, 232 Lear, King (character/play), 54, 75–6, 195, 206, 213–14, 218, 221 legal abstraction, reductive nature of, 139–41 legal education, 10, 43–4, 92, 158 see also law schools legal fiction(s), 2, 14, 17, 130, 132, 138, 141 legal formalities, 36, 108, 198 legal language, 2, 19–20, 22–3, 85–6, 184–5, 246 Shakespeare’s, 200–6 legal owners, 104, 108, 118, 126, 128 legal profession see lawyers legal terminology, 114, 200, 203, 206 legal title, 53, 81, 92, 108, 116–17, 122–3, 234 legitimacy, 11, 33, 53, 163, 173, 228 ‘Let the Bird of Loudest Lay’, 125 see also ‘Phoenix and Turtle, The’ 125 level ground, 153, 157, 161, 163, 177 level justice, 77, 153 limits of equity, 246–8 Lloyds Bank v Rosset, 34, 127 loans, 13–14, 130, 197, 201 Locke, John, 16, 35, 99, 233, 235 logic, 13, 40, 86, 137, 147 Lord Chancellors, 7, 49–50, 54, 60, 64, 66–7, 79 Cottenham, 59–60, 88 Eldon, 62, 234 Ellesmere see Ellesmere, Lord Chancellor Talbot, 20, 78 Lords see House of Lords love, 17, 55, 93, 100, 125, 141–2, 162 Love’s Labour’s Lost, 100, 195, 201–2 Lucas, J, 9–11 Macnaghten, Lord, 8, 130 Maitland, FW, 8, 43, 118–21, 130 marriage, 95, 99–101, 110, 115, 117, 125, 198 Martin v Myers, 109 masks, 167–8 Master of the Rolls, 19, 49, 60, 64, 79, 81–2, 101 maxims, 34, 85, 87, 92–104, 132–3, 156

Measure for Measure, 20, 32, 47, 73–5, 195, 214, 217–22 Melville, Herman, 40, 238 Merchant of Venice, The, 163, 195, 197, 202, 204–6, 214–18 mercy, 4, 38–9, 70–5, 176, 182, 212–16, 220–1 merit of metaphor, 141–9 Mesharum, 177 metaphoric reasoning, 146–7, 161–2 metaphorical language, 147, 149 metaphor, 22, 31, 76, 103, 135–40, 220–1 see also individual metaphors (e.g. river of justice, scales) architectural, 153–7 Aristotle’s, 156 Ashburner’s, 159–60 effective, 142–3, 145 as equitable doctrine, 149–51 of equity, 151–1 merit of, 141–9 potamic, 106, 157–62 metaphysics, 124–5 Midsummer Night’s Dream, A, 141, 143, 195 Miller, JH, 171–2, 191 Milsom, SFC, 122–4 mimesis, 144 moderation, 2, 16, 54, 70, 81, 161, 246 motive, 183–91 modern trusts, 120, 122, 124, 205 Montaigne, Michel de, 4, 27, 44 Montesquieu, Baron de, 98–9, 139–40 mortgagees, 14, 20, 130–1 mortgages, 13–14, 20, 83, 101, 130–1, 200, 204 pools of, 119 mortgagors, 14, 130, 204 Mortmain, Statutes of, 120 motive moderation, 183–91 multiple meanings of equity, 36–41 Munday, A, 211–12, 233 mythology, 14–15, 131, 137, 150, 158–9, 229 names, family, 171–2 naming, 143, 171, 174–5, 243 Nashe, T, 203 natural justice, 82, 221 natural law idealism, 87, 155–6 nature, 8–9, 35, 59, 130, 144, 154–6, 247 laws of, 35, 135, 153, 156 Nerissa (character), 203, 214–15 new equity, 29, 41–2, 64, 80, 82–3, 89, 244 new life of equity, 79–82 Nichomachean Ethics, 27–9, 135, 199 non-financial contributions, 140–1 Norfolk’s case, see Duke of Norfolk’s case Nottingham, Lord, 48, 54, 78, 107 novels, 55–6, 58–60, 62–4, 169–75, 186–7, 191–4, 237–8 see also titles of individual works

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Index noverints, 203 see also scriveners Nussbaum, MC, 4, 87

poets, 13, 24, 114–16, 142, 145, 155, 184 see also individual poets Poins (character), 207–8, 211 Portia (character), 81, 196, 203, 214–16, 247 possession, 50, 68, 70, 122, 130, 138, 217 of lands, 235 potamic metaphor, 106, 157–62 see also river of justice pound of flesh, 163, 197, 201, 216 Pound, R, 45, 80, 84, 135, 163, 184, 244 precedents, 23, 76–9, 81–2, 93, 184–5, 202–3, 244–5 pretence of equity, 227–48 pretences, 87, 240–3 false, 241–3 true, 242–3 prison(s), 29, 52, 57, 60, 63, 113, 182 see also imprisonment private equity, 128–9 privity of contract, 88 profession, legal see lawyers profits, 88, 110, 129, 131, 137, 239 unauthorised, 128–9 promises, 2, 13, 33, 88, 95, 97, 114–16 Promos and Cassandra, 219 property, 89–91, 104–5, 116–19, 124–6, 137–8, 149–50, 233–5 equitable, 90–1, 111, 116–17, 125, 203, 235 law, 33–4, 81, 89, 109–10, 127–8, 130–1, 137–8 logic, 13–14 real, 13, 83 rights, 80, 117, 137, 140, 149, 234–5 see also ownership proprietary entitlements, 110, 138, 234–5 proprietary estoppel, 34, 104–5, 108, 110, 128 prosaic abstractions, 136, 149, 166, 228 prosaicness, 136, 144–5, 148, 150 public example and private equity, 128–9 purchase, 13–14, 88, 112, 116, 126, 140, 200 purchasers, 14, 88, 110, 112, 116, 163, 206 Pye v Graham, 12

obscurity, 64, 174–5, 241, 246 O’Donoghue, ND, 19, 87 Oldcastle, Sir John, 211–12, 233 see also Falstaff (character) opportunity, fair, 36 oral agreements, 90–2, 110–11 Ortony, A, 145, 147–8 Oughtred v IRC, 90–2, 96, 101, 126 outlaw equity, 231–7 owners: absolute, 24, 117–18, 123 legal, 104, 108, 118, 126, 128 ownership, 94, 118, 126, 149–50, 172 absolute, 24, 104, 117–18, 123 beneficial, 91, 234 equitable, 117, 124 Oxford’s case see Earl of Oxford’s case Parliament, 3, 19–20, 34, 51, 61, 83, 102 see also House of Lords partners, 56, 76, 127–8 passion, 87, 141, 144, 186–7, 247 Pater, WH, 221–2, 236 Peltason, T, 58, 182–3 Pennington v Waine, 104, 162 perfect justice, 1, 28, 32, 88 perfection, 75, 82, 170 performance, 16–17, 90–1, 114–16, 196, 198–9, 214, 217–18 specific, 17, 90–1, 103, 114, 116, 199 performative utterance see speech acts Pericles, 26, 204, 243 perpetuities, 24, 105, 120, 194 personification, 166–7 personification of equity, 166–8 see also female equity Petch, S, 170, 179–80 petitions, 50–1, 53, 60 Petruchio (character), 197–8 Phelps, CE, 93, 197, 208–9 ‘Phoenix and Turtle, The’, 125 see also ‘Let the Bird of Loudest Lay’, 125 Pickwick Papers, the 62–3, 141 picture of equity, 38, 227, 230 Plato, 28, 32, 44, 96, 164–5 pliability, 156–7 plots, 105, 137, 169, 192 Plutarch, 26, 243 poems, 17, 55, 64, 124–5, 145, 181, 228 see also poetry; titles of individual works poethics, 4–5, 246 poetics, 141, 144, 146 poetry, 25, 37, 136, 143–6, 166–7, 222, 245 see also poems; titles of individual works

Quintilian, 147–8 rape, 99–100 rational equity, 214 rationality, 111, 146 re-conversion, 98–9 real property, 13, 83 reality, 14, 37, 79, 96, 131, 137–8, 145 reasonableness, 12–13, 18–19, 23, 27, 69, 85, 212–13 reasoning, metaphoric, 146–7, 161–2 recipients, intended, 150–1 redemption, equity of, 14, 130, 204 reductive nature of legal abstraction, 139–41

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Index reforms, 28, 30–1, 56, 60, 68, 86, 190 relations, human, 125, 137, 227–8 reliance, 23, 33, 53, 80, 91, 97, 105, 108, 110, 128, 195 remedial equity: constancy of, 8–10 remedies: equitable, 91, 113–16, 126 resistance, 19–20, 27, 216 restraint, 16, 33–5, 38, 86, 91, 107–8, 229 restrictive covenants, 88–9, 190 resulting trusts, 149–51, 234 rhetoric, 14, 16, 18, 100, 167, 212, 214–16 see also figures of equity, metaphor, personification and tropes Richard Carstone see Carstone, Richard (character) Richard II, 51, 241 Richard III, 202, 204, 209, 213 riders see horse and rider right angles, 153, 155 righteous, 153, 186, 231–2 rights, 28–30, 33, 35, 86, 91, 118, 185–6 rigidity, 8, 10, 33, 50, 81, 88, 118 river beds, 160–1 river of justice, 157–62 rivers, 157–8, 160–1, 227, 237 see also potamic metaphor; streams; water robbery, highway, 206–7, 209 Romeo and Juliet, 94, 101, 184, 195, 223 routine law, 83, 102, 136, 231–2 routines, 3–4, 10, 96–7, 108, 145, 204, 229–31 royal equity, 207 royal orders, 73–4 rules, 24–6, 32–5, 73–5, 86–9, 93–4, 155–7, 164–7 general, 2–3, 8, 31, 113, 148–9, 162, 229 sacredness, 242–3 St German, C, 31, 70–1, 92–3, 107, 167, 185–6, 232 sales of land, 34, 92, 101, 110 Saxons see Anglo-Saxons scales, 163–6 science, 78, 87, 132, 146–7, 155, 184 empirical, 10, 13, 228 fiction of law as, 10–14 Science Research Council v Nassé, 163–4 Scott, Sir Walter, 16, 43 scriveners, 198, 202–3, 238 seasoned justice, 215 security, 13–14, 119, 130, 144 Selden, J, 157, 210 self, 125–6, 172, 175 self-Other relationship, 183 Senecan clemency, 214–15 separate estates, 180

servants of God, 21–2 settlements, 118–19, 153, 180, 189 see also trusts settlors, 117–18, 165 shadows, 37, 87, 148, 188, 230–1 Shakespeare, William, 32, 73–6, 114–15, 143–5, 195–207, 209–14, 217–25 see also individual characters and works equity, 195–225 and ‘equity’ as word, 206–7 equivocation, 223–4 impartiality, 222–5 legal language, 200–6 Shamash, 177 Shanley v Northeast Indiana School District, 161 Shanske, D, 26–8, 36–7 shares, 13, 29–30, 90–2, 118–19, 126–9, 140–1, 200 equal, 97, 234 sheep, 102, 196 see also shorn lamb Shelley, PB, 131, 159, 184 shepherds, 102–3 shorn lamb, 162–3 Shylock (character), 32, 163, 196–7, 201, 204, 214–17, 243 Simmonds, N, 31 simplicity, 6, 101, 199 sinderesis, 212–13 Skimpole, Harold (character), 59, 112, 172, 176, 188, 193 Sly, Christopher (character), 197 Smallweed, Mr (character), 182 Snagsby, Mr (character), 188–9, 238 Snitchey, Jonathan (character), 62, 83 society, 10, 15–16, 64, 135–6, 192, 228, 243–5 Sokol, BJ and M, 76, 218 solicitors, 60, 66, 97, 129 see also lawyers songs, 25–6, 61 Sonnets (Shakespeare), 93, 201–2, 204 soul, 5, 15, 48, 54, 136–7, 213, 239 space, 31, 125, 136–7, 246 specific performance, 17, 90–1, 103, 114, 116, 199 speech acts, 115–16, 122 Spence, G, 48, 51, 53, 95, 100, 121, 204 Spenser, 166, 181 standing, 184–6, 206, 215–16 stasis, 157, 183–6, 188, 198, 224–5, 238 state, settled, 82, 118 statute, equity of the, 5–7 Statute of Uses, 122–3 Statute of Wills, 122–3 Statutes of Mortmain, 120 steadfast law, 26–7

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Index stêlai, 26–7 stereotypes, 3, 125, 153, 181, 195, 197 of female equity, 179–81, 221 of Jew in middle ages, 196, 215 Stevens, R, 10, 61, 87, 137, 145, 181 sticklers for legal rights, 29–30, 103, 182, 185, 238 see also akribodikaios stirring, equity, 4, 104, 123, 160, 183–4, 186, 211–13 Storey, G, 40, 169, 174 storm, 75, 157, 187, 222 strangers, 25, 88, 104, 111, 165 streams, 106, 157–8, 212, 237 see also potamic metaphor; rivers; water strict enforcement, 38, 69, 86, 128, 219 strict law, 9, 28, 32–3, 35, 73, 81, 245–6 style, 21, 101, 142, 222, 236 substance, 21, 65–6, 95–6, 99–100, 171–2, 174, 195 summer, 174–5 Summerson, Esther (character), 55, 58, 237–8, 242 close of narrative, 194 as domestic goddess, 191–3 equity of, 169–94 sun, 9, 174, 176–7, 188, 197, 230, 237 sunshine, 174–5 supporters, true, 72–74 see also heraldry Supreme Court of Judicature Acts, 158, 222 Swift, Jonathan, 85 symbols/symbolism, 73–4, 103, 136–7, 155–6, 187–8, 192–3, 209–10

trust(s), 16, 33–4, 90–1, 111–13, 116–29, 204–5, 234–5 beneficiaries, 23, 112, 119, 129 chancery, 117, 121–2, 204–5 constructive, 126–8 English, 119, 121, 124–5 historical development, 120–4 idea, 16, 119–20, 122 in, 24, 62, 119, 122–4, 204–5 informal, 82, 117 metaphysical appeal, 124–5 modern, 120, 122, 124, 205 on, 13, 90–1, 97, 112, 122, 141, 234 property, 104, 112, 138 resulting, 149–51, 234 Tulk v Moxhay, 88 Tulkinghorn, Mr (character), 3, 167, 182 Twelfth Night, 162, 195, 201 unauthorised profits, 128–9 unconscionability, 33, 35–6, 84–5, 90, 106–9, 111–12, 229 unconscionable conduct, 85, 89, 107–8 United Scientific Holdings Ltd v Burnley Borough Council, 159–60 unjust enrichment, 108, 128, 150–1 Uses, Statute of, 122–3 utilitarianism, 40 Utopia, 247–8 vagueness, 10, 38, 71, 227 vehicle, 138–9, 141–2, 151–2 Venice, 81, 196, 214, 217–18 see also Merchant of Venice, The Vice-Chancellors, 50, 54, 59, 79 volunteers, 94–5

Talbot, Lord Chancellor, 20, 78 tautology, 32, 93 tenants, 68, 101, 165 tenor, 138, 142, 149, 151–2 terminology, legal, 114, 200, 203, 206 testaments see wills Throckmorton v Finch, 69, 209 Tillotson, K, 59 Timon of Athens, 25, 106–7, 114–15, 223 Tinker v Des Moines School District, 161 Tinsley v Milligan, 234–5 title, 13–14, 17–18, 33, 53–4, 56–7, 83, 121–5 equitable, 116, 122, 235 legal, 53, 81, 92, 108, 116–17, 122–3, 234 Torah, 154 transfer, 33, 90–2, 96–7, 140, 143, 149–51, 162 trespass, 113 trials, 17, 72, 75, 181, 206, 209 tropes, 147, 166–7 true education, 42, 59, 228 true equity, 37, 83–4, 90, 102, 170–1, 217, 231 trustees, 23, 33, 62, 77, 117–19, 128–9, 165

Ward, I, 68, 124, 223–4 wards, 57–8, 65, 192, 205 in chancery, 57, 63 water, 36, 60, 157–8, 160–1, 212 see also potamic metaphor; river of justice; rivers; streams wealth, 10, 24, 36–7, 90, 118–19, 123, 180 Weisberg, RH, 4, 5, 246 West, W, 18, 71, 103, 136–7, 152, 155–6 White, JB, 3, 15, 86, 145, 224 widows, 6, 50, 67, 97 Wilberforce, Lord, 7, 31, 129, 163–4 wills, 87, 114, 169, 203, 236 see also testaments Wills, Statute of, 122–3 Wilson, L, 114, 218 windows, 59, 155, 190–1, 238 Winter, SL, 146, 184–5 Winter’s Tale, The, 57, 144, 195

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Index wives, 22, 81, 99–100, 123, 180–1, 230, 237–8 women, 40, 99–100, 103, 173–6, 180–3, 187, 192–4 writs, 48–50, 53, 69, 120, 202

Yeoman’s Row Management Ltd v Cobbe, 105, 110 yokefellow of equity, 76, 206 Zeus, 12, 26, 164–5 Zimmermann, R, 11, 112, 118, 120, 123

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Date: 24/6