ABSTRACT
The conscience-based equity that is used in England and Wales developed over the centuries from a theological idea about the monarch’s conscience and the need for individual defendants to cleanse their consciences through the courts, into a very important part of our system of law (governing pension funds, ownership of the home and so forth) which is based on a moral concept of good conscience in the treatment of other people and their property. This chapter tells the story of equity. In a common law system, all of our law rests on telling stories about how rules and principles affect ordinary people, their rights and their property. In this tale the hero is the idea of conscience itself as it has survived the brickbats that have been thrown at it since the 16th century to emerge as an organising concept for equity which is ideally, almost uniquely, suited to the 21st century. It is a story about archbishops and their relation to their Queen, it is a story about Lesbian architects, and it is a story about a little
26.1.2 The golden metwand versus the Lesbian rule
Golden metwand of common law versus crooked cord of conscience
In Chapter 1 we considered the development of equity in outline. We learned that judges like Chief Justice Fortescue were clear that, in the early courts of equity, ‘we argue conscience not the law’.1 This made the common law judges nervous about the growing power of the Lord Chancellor and his Court of Chancery dispensing justice as they saw fit, often in disagreement with the rules of the common law. It is easy to see how this might have seemed like an upstart jurisdiction which threatened anarchy within the 16th century legal system. Lord Coke, the leading common lawyer at the beginning of the 17th century, wanted equity removed from the legal system. In his opinion:
[A]ll causes should be measured by the golden and straight metwand of the law, and not to the incertain and crooked cord of discretion.2
