Early Modern Equity: The Benefit of Discretion

Cameron Whiteside | 15 February 2024

Early Modern History | British History | Legal History 

By modern legal standards, it is anathema to suggest that judges should enjoy great discretion over the verdicts they deliver. If such freedom of judgement was available, the personal prejudices of justices could lead to arbitrary rulings, with many declaring that judges exist not to create but to enforce the law.

Discretion, however, exists throughout modern law and administration. For those deciding peoples’ entitlement to asylum or Universal Credit, or length of prison sentence, a measure of discretion is afforded for potential extenuating factors. The rationale behind discretion’s toleration partially affirms that laws cannot sufficiently account for the multiplicity of circumstances that occur. To Tom Bingham, discretion, although deeply problematic, is permittable, even preferable, providing it is based on stated criteria and amenable to legal challenge.[1]

For those in early modern England, however, the law’s imperfection was managed rather differently. Here, the limits of judicial discretion were considerably larger, with the law’s imperfectability being directly addressed ‘in equity’. But what was early modern equity and what did contemporaries think about its application?

Most essentially, equity was a concept that was applied in ‘courts of equity’, most prominently the Court of Chancery headed by the Lord Chancellor. Linked with various ideas of fairness, mercy, and ‘giving what was due’, equity developed out of the natural law conception of ‘conscience’ that had dominated the pre-reformation Chancery. Equity, therefore, affirmed that ‘the conscience of the Chancellor’ was an objective standard informed by the Chancellor’s ‘reason’ – a capacity that Aquinas had declared axiomatic to God’s will. To the most important contemporary writer on equity, Christopher St Germain, equity was ‘nothing but an exception of the law of god/law of reason, from the general law of man’.[2]

For much of the early modern period (c.16th and 17th centuries), equity courts were incontestably superior to their common law counterparts. The Chancery, being the ‘Keeper of the King’s Conscience’, could, and would, hear cases after verdicts had been given in common law. Lacking trial by jury, the need for judicial precedents, and the contemporary standards of admissible evidence; the Chancery could intervene in any case deemed worthy of the Chancellor’s attention – who alone theoretically decreed verdicts, often with explicit reference to his conscience.

The self-evidently large room for arbitrariness that existed in equity’s application attracted criticism, especially from common lawyers. For one anonymous writer, equity was a bewilderment: ‘there is nothing more usual than the name equity and scarce anything more obscure than the matter itself’.[3] To the jurist John Selden, equity was a “Roguish thing”.[4] In ‘law we have measure, know what to trust’, but as “Equity is according to the [Chancellor’s] Conscience”, there is no consistency, with the Chancellor’s conscience being rather like his foot - where “One Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot”. This criticism of equity’s arbitrary nature is substantiated, moreover, when we factor Francis Bacon’s impeachment from his Lord Chancellorship in 1621 for taking bribes in ongoing cases.

Before adjudicating, however, that equity was an arbitrary, ‘roguish thing’, incompatible with credible legal administration; it is beneficial to evaluate the concept on its own terms and on the case presented for its defence. To contemporary supporters of the Chancery, equity was fundamental to the law’s integrity.


For St Germain, equity existed to ‘foloweth the intent of the law rather than the words of the law’.[5] This early modern ‘loose constructionism’, here argued that although lawmakers had not foreseen a given case’s circumstances, they would have wished for the verdict admissible in equity. To Chancellor Ellesmere, ‘the cause why there is Chancery is, men’s actions are so divers and infinite it is impossible to make general law which may not fail in some circumstances’.[6] After all, laws could prove overly strict, punishing those who unintentionally broke the law, often beyond what was considered fair. 

Indeed, as a popular classical writer among early modern Englishmen, Cicero, declared ‘rigorous law is often rigorous injustice’.[5] Conversely, general laws could omit those who should be punished, but who avoided breaking the letter of law through legislative loopholes. Ideally, lawmakers would want to punish the guilty and preserve the innocent, with equity courts, supposedly, existing to offer that guarantee.

Additionally, equity’s defenders highlighted the potential repercussions of widespread legal dissatisfaction. If law enforcement was inadequate, contempt for legal processes would develop and the law itself would be discredited. To avoid this, circumstantial discretion was considered beneficial, with even Thomas Hobbes arguing that equitable proportionality was necessary for subjects to act lawfully and honour the social contract.  Equity’s interventions, therefore, theoretically safeguarded English law and society from the law’s imperfections.

Lastly, and principally, equity was defended on the basis that it was exceptional. Its elusive, arbitrary nature was unavoidable given its existence as a unique application in exceptional circumstances. Indeed, precise definitions of early modern equity were, and are, paradoxical. As St Germain demonstrated, equity was ‘an exception in the general law’, with equity courts intended as exceptional courts dealing with exceptional cases. 

On this basis, although equity as a separate jurisdiction has rightfully been banished to the ‘ash heap of history’, we can appreciate the rationale of equity’s defenders. After all, a significant addition to modern UK law similarly sought to account for the imperfections of law enforcement in exceptional situations. 

Following the death of Stephen Lawrence, and the unsuccessful trial of his murderers, the UK began to permit double jeopardy in exceptional circumstances. An underlying logic of this permission was, like that logic which underlay equity’s defence, that regular processes are imperfect but correctable with the application of discretion.

Cameron Whiteside recently graduated from the University of Sheffield with an MA in Historical Research. Prior to this he also completed his BA at Sheffield. He aims to undertake a PhD on the links between monarchical paternalism and state formation in early modern England.

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[1] Bingham, T., The Rule of Law (London, 2011), pp. 48-50.

[2] Plucknett, T. & J. Barton (eds.), St German’s Doctor and Student (London, 1974), p. 97.

[3] Quoted in Ibbetson, D., ‘A House Built on Sand: Equity in Early Modern English Law’, in Koops, E., and W. Zwalve (eds.), Law and Equity: Approaches in Roman Law and Common Law (Leiden, 2013), pp.55-77, here p.68. 

[4] Selden, J., Table-Talk, Being the Discourses of John Selden (London, 1696), pp.54-55.

[5] Plucknett & Barton, Doctor and Student, p.99.

[6] Quoted in Klinck, D., ‘Imaging Equity in Early Modern England’, Canadian Bar Review (2005), pp. 217–47, here pp.231-2.

[7] See Cicero, M. T., On Duties. Translated by B. P. Newman. Book 1, P.33. The original text reads “Summum ius, summum iniuria”, which can be literally translated as ‘the greatest right/law is the greatest injury/injustice’.

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