- The Culture of Equity in Early Modern England
According to Mark Fortier, equity was "one of the key ideas in general currency" in England from the early sixteenth century up to 1660, appearing "surprisingly and distinctively, perhaps even uniquely . . . over and over" in legal, religious, and political writings, as well as in poetry and drama. Because notions of [End Page 1298] equity were often used "in conjunction with other powerful notions" — God, king, conscience, the people — "supporting them or simply accompanying them," they played "a prominent part in discourses that [sought] to have influence on major social conflicts and issues" of this period. Perhaps the most remarkable aspect of Fortier's study, The Culture of Equity in Early Modern England, is the range of examples it employs in demonstrating these assertions. It attends not only to the "major voices" of the age — "Elizabeth and James, Sidney, Spenser, and Shakespeare, Bacon and Ellesmere, Perkins and Laud, Milton and Hobbes" — but also to "writing about women, the Irish, native Americans and Jews," as well as "the radical writings of the 1640s and 1650s" (2).
Another remarkable feature of this book is its attention to the range of uses to which the concept could be put. Implicitly answering those who have written as if there were a single correct understanding of equity, Fortier points to the diversity of notions, as well as to the aura of contestation surrounding specific cases of equity in action. For example, it would hardly be adequate to confine our understanding simply to an Aristotelian emphasis on equity as a mollification of the law. For, although "many or most in early modern England would have seen equity as more clemency than harshness" (118), equity could be, and indeed sometimes was, invoked to restrain leniency.
In the first three chapters, Fortier lays out his more complicated perspective by exploring concepts of Christian equity, conflicting views of equity in legal discourse, and ways in which it entered into debates about the royal prerogative in political writings. These chapters provide a useful context for the consideration, in chapter four, of the complexities of equity that were explored in the works of Sidney, Spenser, and Shakespeare, and they provide an indispensable background against which to appreciate this study's two important final chapters, which focus on the conservative and radical uses of equity in writing against and for social change in early modern England.
Fortier puts much emphasis throughout on the pliability of equity, or what John Selden referred to as its roguishness. For Selden, concerned that England's courts of equity could put aside or undermine the rule of common law, the problem with equity was that it left to an individual judge's conscience whether or not a given law should be honored. With equity's defenders, the problem was often not so much with equity as with the law itself. Whether equity be described as a corrective to the law, or determination of the spirit rather than the letter of law, it was equity that made justice possible. While there were many in early modern England who argued for the necessity of equity, this study demonstrates that the flexibility of the concept assured that no one side ever owned it. King James's chancellor, Thomas Egerton, Lord Ellesmere, elicited the idea of the necessity of equity as an argument for the assertion of the absolute power of the monarch, whose conscience must be ruled by the Law of God. But in 1645, John Lilbourne presented equity as providing the governed "the liberty to disobey the letter of the law when the letter is unreasonable," and as "supporting individual freedom, safety [End Page 1299] and property against the lawless and uncontrolled government of king or parliament" (9).
Although Fortier's well-conceived and well-written study ends at the Restoration, it will also be useful to those working in the period after 1660. Especially valuable for understanding aspects of this later period is Fortier's treatment of the interconnectedness...