The Culture of Equity in Restoration and Eighteenth-Century Britain and America by Mark Fortier

Abstract

Reviewed by: The Culture of Equity in Restoration and Eighteenth-Century Britain and America by Mark Fortier Neil Guthrie Mark Fortier. The Culture of Equity in Restoration and Eighteenth-Century Britain and America. Burlington, VT: Ashgate, 2015. Pp. viii + 154. $104.95. This slender book is the continuation of an earlier one by Mr. Fortier on the concept of equity in the early modern period (Elizabeth I to the eve of the Restoration), but necessarily with glances back to Aristotle's notion of equity and the development of equity in the English courts. The risk of reading (and reviewing) just the continuation, which runs from 1660 to the end of the long eighteenth century, might be a failure to understand the historical background. Mr. Fortier does a good job, however, of sketching out the main argument of part one in his introductory chapter. There is, to start with, Aristotle's sense of equity as "a method of restoring the balance of justice when it has been tilted by the law." This has striking similarities with equity as a concept in English law, where the courts of equity developed in order to mitigate the perceived rigidity and harshness of the courts that applied the common law. (Equity itself became ossified, ironically, and a by-word for rigidity; Dickens's Jarndyce v. Jarndyce is a case in the equitable court of Chancery.) Other sources of "equity" are the Roman notion of aequitas, and the religious context of the Old and New Testaments. Naturally, these sources overlap—although in the early modern period, Mr. Fortier detects less of the direct influence of Aristotle, and more of Cicero. There are risks in writing a book about a keyword (in Raymond Williams's sense), but Mr. Fortier manages to avoid them. The first is a tendency to find evidence of the chosen concept in everything, as though (in this instance) equity were the over-arching principle in the period. The other risk is that, in focusing on "equity" as a term, it will be overlooked as a concept. As Mr. Fortier points out, equity is one of the central themes of the Merchant of Venice and Measure for Measure but is never mentioned by that name in either. Mr. Fortier has considerable terminological vagueness to contend with but sees this as a source of "usefulness and power." The Culture of Equity is not a history of legal institutions, but of "words and ideas." In a short book, Mr. Fortier is able to convey variety and tone, without making it seem that "equity" is so elastic a term it can fit [End Page 90] whatever comes its way. It is, variously, "impartiality (or at least opposed to partiality), reading for spirit and intent rather than strictly by the letter, balance, proportion, judgment, reason, do unto others, common and unchanging rules of justice." There have been many studies of equity as a theme in the literature of the early modern period (notably Shakespeare and Milton), but less on the concept in works of the Restoration and eighteenth century. Mr. Fortier argues that this is, in part, because there is simply less focus on equity in the later period, in spite of individual works (like Pamela) where it is a significant underlying principle. Mr. Fortier identifies some competing uses of the concept of equity in the Restoration. First, there was a backlash by Royalist writers who sought to reclaim equity—and in particular, the associated maxim salus populi suprema lex. The idea that the good of the people was the supreme law had been used before the Civil War to defend the Crown's override of parliamentary or judicial authority, but also by the Roundheads to justify the supremacy of popular will over royal authority. After 1660, equity and salus populi returned to the Royalist vocabulary (with exceptions; Sir Roger L'Estrange detested it), while remaining part of the polemics of those "less favorable to absolutism." Equity was deployed by those who upheld the necessity of conformity to the established church, but also by those who argued the case for toleration of dissent, particularly that of the Quakers. In the years leading up to the revolution...