ABSTRACT
Early modern England, in the sixteenth and first half of the seventeenth centuries, produced treatises entirely or centrally concerned with the complexities and wide-ranging repercussions of equity: Edward Hake, in Epieikeia, saw equity as not outside or against the law but as everywhere and always at work within the law; John Warr foresaw the replacement of law and all social regulation by the equity at work in the individual conscience. Thick volumes of casuistry were produced as the result of the systematic working out of equity in particular situations. This period also produced poetic works that undertook complex and sophisticated explorations of equity: the fifth book of Spenser’s The Faerie Queene and Shakespeare’s The Merchant of Venice and Measure for Measure. 1 My claim has been that the Restoration and eighteenth century produced no comparable poetic or literary works, but did it produce philosophical works extensively or centrally concerned with equity? Legal tracts attempted to systematize rules of equity but were not philosophical explorations of its essence as works of the past had been. Others, again without rethinking the basic meanings of equity, turned to equity repeatedly as a yardstick and term of reference. Casuistry, in the late seventeenth century, abounded before fading away. Roger L’Estrange invoked equity, often with great suspicion, throughout a large body of work dealing with various topics. Granville Sharp argued from “the eternal Rules of natural Equity and Justice” 2 for the rights of the Irish, the English citizenry, their American brethren, and their slaves. He also wrote from equity against duelling and more generally on the law of nature and basic principles for human action. Sharp asserts that the “ONE PATERNAL PRECEPT” given to us by the Creator is to love thy neighbour as thyself, which gives rise to “the equitable rule of ‘doing to others, as we should have them do unto us’; or, in short, to love our neighbours as ourselves.” This precept is “the Spirit, or FIRST PRINCIPLE of LAW, and contains the Sum and Essence of all other Laws!” The “Royal Law” or golden rule is a law of liberty because unlimited authority of any man or men over others is “contrary to Natural 120Equity and the Laws of God, as well as baleful to mankind in general.” Dueling, as one particular under this general precept, runs contrary to love of neighbour and “the most indispensable principles of the laws of God and nature.” 3
