An Early Tudor Debate on the Relation between Law and Equity

Abstract

This paper sets out the debate about Chancery between Christopher St German and an anonymous ‘Serjeant at the Laws of England’, focusing on the jurisprudential problem most fundamental to the debate: whether conscience and equity can ‘follow’ the law while at the same time ‘mitigating its rigour’. It also describes the theory of law, equity and conscience which St German develops in the effort to resolve this problem, noting that he intended this theory also to serve as an apology for the institutional separation of law from equity. Finally, it shows that the theory is ineffective in its role as an apology. Although the separate jurisdiction of Chancery was able to weather the jurisprudential challenges of the 1520s and 1530s, it did so less in virtue of the explicit doctrinal justification it received from the pens of theorists like St German, than in virtue of pragmatic considerations recognised both by the Chancellors and by the litigants who sought their help.