The Chancellor & Equity – Epitome of Christ & the Grace
There is no profession that I know which perfectly illustrates Christ’s redemptive work better than the Legal Profession. In this article, we will look at the striking similarities and parallels that exist between Christ’s ministry and the legal profession. Maybe, you did not know that Christ was a ‘lawyer’ when he was on earth? He was an advocate. Remember how he defended the woman caught in adultery in John Chapter 8. “Advocate” as a noun is a person who represents another person’s interest like a lawyer does. The word was derived from the courtroom. It is from Latin ‘advocare’ – To ‘add’ a ‘voice’. To advocate means, to add a voice or support to a cause or person.
As a member of ‘the Bar’, Christ feels comfortable dealing with his colleagues. At least I am aware that when he had an encounter with Paul, who was his ‘Bar colleague’, they instantly clicked, even far better than the original apostles who were chosen from other professions and had been with Christ for some time. The partnership of the two ‘legal brains’ (i.e. Christ & Paul) won them many souls ‘cases’ of international repute (gentiles), possibly, more than what the apostles all won for Christ. Indeed Christ continues to play the role of an advocate as we speak. John gave us a clue when writing his first epistle to the church in this manner: “… if any one sins, we have an Advocate with the Father, Jesus Christ, the righteous”. – 1 John 2:1.
I am told that Christ has now been elevated to ‘the Bench’ by the Most High and is getting ready to judge all mankind. A medical doctor, Luke, wrote to Theophilus to disclose this new appointment and the cases awaiting him. This is how Dr. Luke conveyed his message: “… He (God) has appointed a day on which he will judge the world in righteousness by the Man whom He has ordained, He has given an assurance of this to all by raising Him from the dead”. – Act 17:31.
John clarified that God has even left all the cases to be tried on the Judgment Day to our ‘Bar colleague’: “For the Father judges no one, but has committed all judgment to the Son” – John 5:22.
Due to the special love for his professional colleagues, he does not want any member of the Bar to be found guilty on that day, so he has gone to the extent of using the development of equity to convey his grace message clearly to us.
Sometimes, the idea that God means God the Father, God the Son and God the Holy Spirit makes no sense. Similarly, Article 11 (2) of the 1992 Constitution may make no sense to a lay person. According to the Article, the Common law of Ghana shall comprise
- The rules generally known as the common law
- The rules generally known as the doctrines of equity and
- The rules of customary laws
For a lay person, how can common law means common law, equity and customary law? For the mathematicians, it is like (X=X+Y+Z). For God to make us understand the possibility of the divine trinity, he gave us the trinity of the common law of Ghana. In the Bible, the Old Testament represented the era of God the Father, the New Testament had God the Son and our dispensation has God the Holy Spirit at work.
Analogy of the Common Law and the Old Testament
- The Common Law was embedded in traditions, customs and usages and not in codes as found in most Civil Law Jurisdictions. God originally put his laws in the heart of men. In the Garden of Eden or in the Abrahamic era, there was no written law. Man’s disobedience to the eternal law brought about positive law and the giving of the Ten Commandments (Romans 5: 13).
- Original application of the common law was only in England. It had no application in Ghana. Similarly, the Old Testament was applicable to only the Jews in Israel due to the covenant God had with Abraham and Jacob. It had no application in Ghana (Genesis 28).
- The use of writ forms in commencing actions. A person could only initiate an action by buying the appropriate writ forms from the writs shops. In the Old Testament, one needed to perform the requisite rites of purification in order to attract God’s forgiveness or presence.
- No new writ forms were to be introduced from the 13th Century. God shut the door to his people from having other gods besides him. (The God of Israel is one (Deuteronomy 6: 4). God is a jealous God and was not prepared to share his glory with any other. They were to continue obeying God’s commandments and statutes and live strictly by them.
- Stare Decisis/Judicial precedents. The Old Testament’s accounts are there for our guidance and the strengthening of our faith (Hebrews 11).
- The common law did not recognize trust.
God was the settlor who created the earth for man as beneficiary to dominate and control (Genesis 1: 26).However, when Adam sinned, the authority (i.e. the ‘title deeds’) passed unto the devil as the trustee.
So man lost his authority of controlling the earth to the devil.
- Damages was the only remedy that could be given by the common law courts. Many wrongs could not be adequately compensated. Sacrifices to God under the Old Testament were not enough to redeem man from sin. The blood of animals was not potent and efficacious enough.
“For it is not possible that the blood of bulls and goats could take away sins” – Hebrews 10: 4.
- Rigidity – The slightest mistake one made in the common law courts rendered his/her entire action incompetent. Every year the High Priest had to go to the Holy of holies and sometimes if he himself had sinned, he lost his life (Hebrews 5: 1- 3).
- No mercy in the sight of God.
- Uzzah’s mistake of holding the ark of God from stumbling ended his life (2 Sam. 6: 6-7).
- Lot’s wife looked back and turned into a pillar of salt – Genesis 19: 26. (Note that the name of Lot’s wife is not mentioned in the Bible, but in Jewish tradition, she was called “Edith” or “Ado”).
- Language used at the common law courts was Latin, meanwhile majority of the people were illiterates. The law was written on scrolls and only the priests and the teachers of the law could read and understand (Deut. 33: 10; 2 Chron. 17: 8-9; 2 Chron. 35: 3)
- Many people were denied justice due to the rigorous nature of the common law. Man found it difficult to appease God no matter the effort he made
“For all have sinned and fall short of the glory of God” – Romans 3: 23.
- When many people could not get the appropriate remedy from the common law courts, the King intervened and caused his Lord Chancellor to listen to their grievances and resolved them. Man’s hopelessness made God to send Christ to come and die for us – John 3: 16.
Who was the Lord Chancellor and why was he chosen by the King?
The Lord Chancellor was a priest. He was hitherto the custodian of the King’s Royal Seal. He had been in the system for long but because he did not preside as a Judge he was not known by the people. He was actually the one in charge of the court system and the King thought he was better positioned to know the challenges of the court system. (Kludze writes at pages 4-5 of his book, ‘Modern Principles of Equity’ thus: “The writ had to be obtained from the Chancellor’s office but only because the Great Seal which was required for its validity was kept by the Chancellor and was used for other judicial purposes also. The Chancellor of those days was not a Judge; nor was he a judicial officer … The Chancellor performed many duties for the King and, as Maitland puts it, he was like ‘the King’s secretary of state for all departments’. He had custody of the King’s Great Seal with which all writs from the royal courts were sealed and thus was in close administration rather than judicial association with the legal system”.
- Jesus was with God and was part of creation – John 1: 1-3; Col. 1: 16 and 1 Cor. 8: 6.
- He was the lamb prepared to come to our level and become like us, so he could understand our weaknesses – Hebrews 4: 15
- No wonder he boldly said at John 8: 58: “Very truly, I tell you’, before Abraham was born, I am!”
- The Chancellor was there throughout the operation of the common law, but was not known by the people as a judge.
The imperfection of the common law system led to the intervention of the Chancellor with Equity.
Similarly, because the sacrificing of bulls, goats and other animals was not enough to save man, Christ had to intervene with grace.
“For if that first covenant had been faultless, then no place would have been sought for a second”. – Hebrews 8:7
Who was the Chancellor? – The Chancellor was initially a priest, but with time the office became reserved for lawyers. Christ came to intercede for us as a high priest (Hebrews 7: 26), but he shall return as a Judge to apply ‘the law’.
Nature of the Chancellor’s decisions – Morality (Grace); other than rigidity of the common law (the law).
At equity, the language used was Vernacular, other than the Latin used in the common law courts. Now we do not have to learn Hebrew or Aramaic to be able to talk to God.
Was the common law system abolished? – No. The two systems run side by side with each other (Christ did not come to abolish the law, but to fulfil it)
Was equity undermined during its developmental stages? – Yes, the common law courts made mockery of it. John Seldonexplained how Equity was perceived thus: “Equity is a roguish thing. For law we have a measure… equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make a standard for the measure a Chancellor’s foot”.
Was the grace by Jesus also undermined? – Yes, the Jews looked down on grace and insisted on rituals like circumcision. Hence, Paul had to lambast them in Galatians. Also, in Ephesians 2:8-9, Paul reminded them that it is by Grace that they are saved not of their own works.
What did Equity bring?
- No writ form was required to initiate an action in court. It was just a matter of writing your claim on a paper – Christ’s death rendered the many rituals entailed in approaching God in the Old Testament irrelevant.
- The writ could be written in vernacular – Christ is the High Priest who understands us better. Again, whereas the Bible was only in Greek, the grace message by Martin Luther made him to translate the Bible into the German language for the first time for all to read and now it is written in many local language.
- Equitable orders are discretionary – Our salvation is just by the grace of God. We did not work for it that we can forcibly claim as of right.
- Equity recognized trust.
- Christ recovered all we had lost from the devil for us. He gave us our inheritance. The devil was only a trustee, when man sinned, we became ‘disabled’ and God put our inheritance into the devil’s hands until the Son came to recover them for us in Genesis 3:14-15. The devil took advantage of our disability in the Old Testament and took what was due us.
- The Mortgagor’s Right of Redemption – At Common Law, a mortgagor who defaulted to redeem the mortgaged property by the stated date forfeited his property, while at the same time, he was made to pay for the debt owed. The Lord Chancellor introduced Equity of Redemption to allow a mortgagor to redeem the mortgaged property after the date of redemption upon giving reasonable notice to the mortgagee and the payment of the mortgaged debt and penalty. What is even interesting is that at common law, only the mortgagor could redeem the property, but equity allowed anybody with an interest in the property to redeem it for the mortgagor.
- Grace redeemed man from sin. Sin no longer had control over man after Christ’s redemption, unlike the Old Testament which required annual and periodic sacrifices. Christ paid once and for all the debt we could not pay on our own. It was grace that made it possible for another person (Christ) to pay for us.
- The Equity of Redemption was subject to notice to the Mortgagee – The rationale was to enable the mortgagee to become aware so as to take steps to end the mortgage and relinquish the mortgaged property.
- The believer needs to send notice to the world that he is a new creature, the old things are past to dissociate himself/herself from his/her sinful ways; otherwise, the redemption will not be complete.
- The presumption of joint tenancy was substituted by tenancy in common in equity. (Distinction centres mainly on survivorship)
- In the Old Testament, God visited the sins and blessings on the third and fourth generations of the person. E.g. Noah, Jacob and Saul for the house of Mephibosheth.
- In the New Testament like equity, it is individual accountability. Hence, it is possible for a person to be saved while his/her spouse or parent, child etc. perishes.
Some of the Maxims of Equity
- There is no wrong to be without a remedy – There is no sin that the Blood of Jesus cannot atone for (Romans 8: 1-3, 2 Cor. 5: 21; 1 Peter 3: 18).
- Equity acts in personam – Equitable orders were directly made against the person to do or refrain from doing an act. Similarly, under Christ’s dispensation of grace, it is individual responsibility. A son will not suffer for the sins of the father and vice versa (John 3: 16, 1: 12).
- Delay defeats equity – Equity assists the vigilant and not the indolent. The continuous postponement of one’s salvation can be too late. Today if you hear his voice, harden not your hearts – Hebrews 3: 7, 8 & 15.
- Equity follows the law –
- Where the law is clear and does not lead to injustice, equity will follow it – (Christ said, he came to fulfil the law and not to destroy it – Matthew 5: 17-19)
- Equity only departs from the law where following the law would lead to injustice. Equity follows the law, but it does not follow the law slavishly – John 1: 17.
- Grace is not a licence to sin.
- Grace only grants us forgiveness and positions us to obey the law.
- Grace does not stampede the law. It only effectuate God’s will and purpose.
- God’s laws are permanent and cannot be compromised.
- He who comes to equity must come with clean hands – Equity does not avail the person whose hands are tainted.
- Similarly, whoever seeks God with hidden sin in his heart or idols may not find the grace; like the seven of Sceva in Act 19:14-16.
- He who seeks equity must do equity – This maxim looks to the future, unlike the previous one which looks to the past conduct of the applicant. Whoever comes to Christ must be prepared to take up his cross and follow him (Luke 9:23).
- Equality is equity – Just as equality is equity jurisprudence in Mensah v. Mensah now makes it possible for a spouse to benefit from a property acquired during the subsistence of the marriage, so grace has positioned gentiles to now benefit from Christ’s redemption without having to prove that we are Israelites. We are now equal with the Jews in the eyes of God as spiritual Israelites and partakers of the kingdom.
- Equity looks to the intent rather than the form –
- Where there was a slight mistake in a person’s case as to procedure, equity will overlook the mistake and deal with the merits of the case.
- Similarly, Christ does not deal with us according to our numerous sins. He knows our hearts and confers on us the rights of son ship – John 1: 12-13
The Passage of the Judicature Act of 1873-1875
In 1875, both the common law and equity were merged into one system allowing a court to apply both the law as in the common law and conscience as in equity at the same time. After Christ’s death, the curtain of the temple was torn into two as a symbolism of re aligning both the old order and the new order (Matthew 27:51).
The name common law was maintained but in actual fact, it comprises the rules of the original common law and the doctrines of equity. Where there was a conflict, equity prevailed. Grace brought to us by Christ mitigates God’s wrath that would have come on us in the event of us slipping from the law.
In 1876, the Supreme Court Ordinance of the Gold Coast was enacted and the common law applied to the people of the Gold Coast. Now the grace entailed in the common law has appeared to us who were very far.
“For the grace of God that brings salvation has appeared to all men” – Titus 2: 11.
Beyond the common law and equity, we have customary laws. The common law and equity were inherited from the British, but customary law had always been with us. The Holy Ghost convicts us (i.e. our conscience) within our cultural settings. Right from Adam in the Garden of Eden, God has given man’s will to him to decide (conscience) and that is the work of the Holy Spirit now – to convict us. It is like a free style conviction, each person according to how the Holy Spirit convicts him.
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.