Tag Archives: ashburner

Law, Equity, Doomed ‘Marriages’? (And ‘Lesbian Rules)

In more than one previous post, I have gone on about what I think is the questionable use of metaphor in legal writing and judgments. I am not too keen on the use of metaphor in legal discussion. Isn’t it often more confusing than elucidating? And not infrequently more than a bit pretentious?

Well, whatever one makes of the general question of metaphor, there are some individual usages which are particularly objectionable – emasculation is my least favourite, and the reproductive metaphors (Cowcher v Cowcher, anyone?) are also pretty grim, and indicative of a special brand of judicial self-regard. A historical sex/gender-related area of metaphorical activity which had me thinking today was from the 1870s, when the big news in the legal world was the bringing together of the administration of law and equity in one court system, under the Judicature Acts 1873-5.

Those of us who have been through the law-degree route will be very familiar with this being metaphor-ised with watery imagery, in ‘Ashburner’s fluvial metaphor’ (‘two streams of jurisdiction [which], … run in the same channel [but] run side by side and do not mingle their waters’[i]]. At the time of the acts themselves, however, quite a different metaphor was used: that of marriage (or, in some cases, marital sex).

One account mixed metaphors of war and consummation of marriage. Which may well say something about some people’s experience of marriage. More commonly, a more-or-less consistent wedding metaphor was used, though in this poem copied from Punch, the likely tensions in the marriage are certainly emphasised.[ii]  Surprise, surprise, the ‘gruff’ masculine character is the common law, and ‘sweet Equity’ is the bride (virginal, obvs).

One possible problem with the metaphorical marriage can be seen though, if we add in something a bit earlier. It is a completely anachronistic reading, I know, but it made me smile anyway. Another image of equity, much older, but apparently still current in the days of complaint about the problems of separate jurisdictions, in the nineteenth century, was that of equity as ‘the lesbian rule’. Yes, you read that right. And wrong. Because, sadly, it is not, in fact, a suggestion that the Court of Chancery was much more open-minded than other jurisdictions, and welcoming to women who were attracted to women.

It was brought up in a letter by  ‘A Voice from Lincoln’s Inn’, printed in that well-known legal source,the Monmouthshire Merlin for 16th March 1850:

‘[Truly has it been said by that ancient but erudite lawyer, Sir John Doderidge, that “It is a court of conscience, which giveth comfort, considereth all the circumstances of the fact, and is, as it were, tempered with the sweetness of mercy: it mitigateth the rigour of the common law, and leaving the inflexible iron rule, taketh the leaden Lesbian rule and issueth this sentence full of comfort to the afflicted, “Nullus recedat a Cancellaria sine remedio”’. [The Lawyer’s Light, (1621), p.175.][iii]

Sadly it is actually about a flexible tool for building purposes, the origin of which was ascribed to Lesbos (and which is contrasted with the oh-not-at-all-phallic inflexible rule/rod of the common law). The point is its bendiness rather than its sexual preferences. Still, I do think that those of us who teach in the property/equity area should be making more of an effort to bring this metaphor back. As chance would have it, I am doing some equitable bits of Land Law this week, so I don’t suppose I’ll be able to stop myself bemusing the students with it.  Seems a bit more exciting than rivers anyway




Another interesting image for the fusion of law and equity – from a previous effort – is that of mixing strychnine and prussic acid – ‘A Horrible Compound’, Punch, 19th May 1860, p.8. This image made a comeback in Punch, 19th March 1873, p. 8:

Chemistry of Law Reform

There is talk about a contemplated ‘Fusion of Law with Equity’. Perhaps if this be effected, the resulting amalgam will be innocent, or even salutary. Such is sometimes the case with a compound, the constituents of which are deadly poisons.’

Then in 1875, we have a nice disease image: Punch 21st August 1875, p. 6

Suitors’ Sufferings

As Law is to Rheumatism, so is Equity to Gout. The fusion of Law and Equity may be said to form the counterpart of Rheumatic Gout.)

And on the ‘lesbian rule’ issue – of note is the to-ing and fro-ing between seeing the ‘lesbian rule’ as a good or neutral thing, and seeing it as a bad thing (the ‘palm tree justice’ of its day – another image which could certainly do with some examination). We certainly get ‘lesbian rule = arbitrary’ in Earl of Dalhousie v. Lord and Lady Hawley (1712) Mor. 14014, a Court of Session case, but older uses of the phrase are not necessarily hostile, suggesting that there is virtue in flexibility, and adjustment to the irregularities and curves (as it were) of a situation.

More matrimonial images

We have a law-equity marriage in a description of the effect of the Statute of Uses 1536, in ‘The Conveyancer’s Guide’, a long, long poem about, yes, conveyancing (and why not?( published in a collection of 1885:

‘The use, which was a sort of bride

was fast to the possession tied:

they were conjoined and married.

You can’t have one without the other:

like man and wife they go together.’

–  J Greenbag Croke (ed.), San Francisco 1885) Poems of the Law,

[i] Walter Ashburner, Principles of Equity, (London, 1902), 23.

[ii] Well, not entirely consistent – it does have a nasty miscarriage metaphor too, in the first verse.

[iii] (Doddridge’s book was actually printed in 1629, I believe). This image was used in English legal writing from (at least) the early modern period – e.g. Selden, Janus Anglorum 1 c.7, but elsewhere as well, and is usually credited to Aristotle, Ethics, v. References are often rather negative (it’s the thing we don’t want law to be) which would strike a chord with women in general and (modern style) lesbians in particular.

Photo by Jeremy Wong Weddings on Unsplash