Ex facto jus oritur. (The law arises out of the transaction) The law is the shadow of the facts cast.
— Henry Gibson, Gibson’s Suits in Chancery
Many aspects of Christian civilization and culture have been swept away since the war to prevent Southern independence. But not all of them.
One important institution that remains serviceable to justice is Chancery Court, which survives in Tennessee and two other states. The world of courtrooms, pleadings, hallway bench negotiations, flashing motions and “your honors” is bought close to us by television dramas. Sampling the case files of TV shows we come to imagine ourselves a part of this world, and it does not awe us because the program makes us insiders and the issues of the case are made comprehensible. In real life we are more likely to feel we could do nothing apart from engaging an attorney to either represent us or give counsel.
The two chancery court judges who serve Chattanoogans in Hamilton County, Frank Brown and Jeff Atherton, work in a forum of ancient standing and Christian origin. Chancery court emerged in the 1300s from the king of England’s interest in justice, in his desire to give his people a way of settling disputes that allowed the facts of a case and the controlling “law” inherent in many individual cases. Chancery used ecclesiastics, generally bishops and archbishops, whose peculiar dialect permeated pleadings before their bar for centuries.
We are not suggesting that chancery court can aid us even indirectly in the defense of the right to life. Though this right is emphasized in the Scriptures, too much has become settled law in statue and in other jurisdictions to allow chancery’s officers and their juries to weigh in on the side of the weak and oppressed who happen to be in the womb.
CHANCERY COURT JURISTS are called chancellors because this office is one of advice to high church officials in matters of canon law. So as chancellors aided a bishop in a juridical matter, so he came to aid the king. “A deliberate and persistent effort was made to bring their jurisprudence into perfect harmony with an absolutely impartial equity, that should do equal and perfect justice to all,” says a noted book on chancery in Tennessee (“Gibson’s Suits in Chancery,” Henry Gibson, 1955; 1891)
“In England, the King was regarded as the ‘fountain of justice’; and, when any person conceived that he had been wronged, either in court or out of court, he had the privilege of petitioning the King for redress. The King, being unable to hear and determine all of these complaints because of their number and complexity, generally referred them to his chief secretary, who was called his Chancellor. This officer was an ecclesiastic, trained in the law and theology of Rome, and was sometimes called the ‘keeper of the King’s conscience.”
The chancellor was a confidante of the king, a chief member of his council and kept the great seal of state. He was spoken of as one who “annuls unjust laws, and executes the commands of a pious prince, and puts an end to what is injurious to the people or to morals.”
IN THE 13TH and 14th century, the common law was showing itself unsuitable in many ways to provide means to settle legal disputes. The chancellors were “very able and very learned men” who thought the common law a very barbarous code compared with Roman civil law as developed under the praetors. The common law had become ossified and fixed, and cases at common law were “technical to the last degree. Absolute accuracy was required in complying with the established phrases and acts in the enforcement of civil rights. Any omission, or mistake, of a word or a movement was fatal. *** The fictions, formalisms and arbitrary technicalities of the common law, and its dialectical refinements, were inexplicable and incomprehensible jargon to the public, and often a costly mockery of justice to the litigants. Those who asked for bread were often given a stone, and those who applied for a fish sometimes received a serpent.”
Simpler, less rigid methods of pleading found a home in chancery, or equity. In equity court the facts of a case could be brought out and the internal law or logic of it exposed, to allow for the chancellor to justly and fairly settle the dispute and restore peace. The facts, in other words, cast a shadow, which is the law of the case.
As Christians we are very interested in God’s grace. By his grace we recognize ourselves as sinners and we petition him for forgiveness. Chancery court was all about “grace” in the sense that its judges operated in the area of the king’s grace and dispensed the king’s grace upon disputants, healing their wounds and disagreements. A lesson of the Reformation was that the king’s grace is a delegated one, a grant of authority from God, the King of kings.
CHANCELLORS WERE ALL ABOUT bestowing grace upon the people. “In those times of disorder and oppression, many were the appeals to the King by the poor and the weak for protection against the rich and the strong, the local magistrates often being overawed, and many were the complaints of want of remedy at law. The King, unable to give personal attention to so many petitions, initially conferred upon the Chancellor full authority to give relief in all matters of ‘Grace,’ as these applications for redress were termed; and from this period petitions began to be addressed to the chancellors themselves, and not to the King.” This delegation occurred in 1348, and within 50 years equity jurisdiction by chancellor was clearly established.
Equity will not suffer a wrong without a remedy. It acts for those disabled to act for themselves. Equity delights in equality. It requires diligence, clean hands and good faith. These and many other delightful concepts are discussed magisterially by Gibson, and point us to further reflection.
In Malachi chapter 2 the Lord castigates the priests who have “departed from the way” and “caused many to stumble at the law.” But God makes mention of Levi favorably, saying of him, “The law of truth was in his mouth, and injustice was not found on his lips. He walked with me in peace and equity, and turned many away from iniquity.”
OUR CONFIDENCE IN THE REIGN of Christ in history should give us an understanding that, until the Lord’s return, there will be a slow, steady progress in the institutions of men that He has ordained, courts among them and chancery a particularly felicitious development, as we learn from Gibson. The evidence of God’s present reign are everywhere. God’s authority makes the psalmist tremble as he considers God’s government through earthly ministers. “The King’s strength also loves justice; you have established equity; you have executed justice and righteousness in Jacob. Exalt the Lord our God, and worship at His footstool — He is holy” (Psalm 99:4, 5).
Though courts, officials, congresses and legislatures rejected equity for baby boys and girls in the revolutionary and ideological fervor of the 20th century, perhaps in the 21st will there be a regaining of balance and a broader appreciation of the concepts of equity.
