^1. Pollock, F., ed., Table Talk of John Selden, compiled by Milward, R. (London: Selden Society, 1927) at 43Google Scholar [hereinafter Table Talk]. One of us, for example, first encountered Selden's jibe—although no citation was given for it—in Waddams, S. M., Introduction to the Study of Law (Toronto: Carswell, 1979) at 130Google Scholar—which, as a first-year law student, he was required to read in the summer before classes began. We have chosen not to modernize the spelling from the original texts: one point we try to make in this paper is that simply lifting a text from one century to another is problematic. The archaic spelling is a reminder that these texts are of another time.

^2. Gee v. Pritchard (1818), 2 Swans 402 at 414.

^3. See e.g. The Canadian Law Dictionary (Toronto: Law and Business, 1980), under “equity, maxims of: “Originally, there were no strict or recognized principles of equity prevailing in Courts of Equity, and each Chancellor dispensed justice according to his own opinion of the matter leading to the saying that ‘equity followed the foot of the Chancellor.’” Keeton and Sheridan construct part of their history of equity around Selden's aphorism: at some early stage, not clearly defined (some examples they give are from the 15th century), the aphorism “would not be an inappropriate description”; however, “[a]fter Nottingham's Chancellorship [1673–1682], no-one could again affirm that equity varied as the length of the Chancellor's foot.” Keeton, G. W. & Sheridan, L. A., Equity (London: Pitman, 1969) at 50, 55.Google Scholar Interestingly, Selden's criticism was not published until 1689—indeed, after Lord Nottingham's chancellorship. There is a counter-history of equity. See Halsbury's, The Laws of England, vol. 13, 2d (London: Buttersworth, 1910)Google Scholar: “But there never was a time in the history of the court when the Chancellor was at liberty to follow generally either his own, or professional, or common opinions as to what was right and convenient.” Another image defining a stage in equity's story is that of “rigor aequitatis.” See Allen, C. K., Law in the Making, 6th ed. (Oxford: University Press, 1958) at 400Google Scholar, and the corresponding portrayal of the Court of Chancery in Dickens' Bleak House.

^4. Re National Funds Assurance Co. (1878), 10 Ch.D. 118 at 128. Compare Buckley, J. in Re Telescriptor Syndicate Ltd., [1903] 2 Ch. 174 at 195–96.Google Scholar See also Pollock, F., The Expansion of the Common Law (London: Stevens, 1904) at 72–73.Google Scholar

^5. For example, “palm tree justice,” “Humpty-Dumpty” justice, and “the living tree.” The expression “palm tree justice,” which overlaps with “chancellor's foot” in referring negatively to the exercise of discretionary power, warrants a study of its own. In fact, in Unrau v. Calm Air International Ltd. (1995), 103 Man. R. (2d) 220 at 224 (Man. Q.B.), the judge collapses the two into one, while Litwin Construction (1973) Ltd. v. Kiss (1986), 4 B.C.L.R. (2d) 83 at 117 (B.C.S.C), also explicitly links discretion as defined by palm tree justice with discretion as represented by the chancellor's foot. For one account of its origins, see comments by Landerkin Prov. Ct. J. in Re S.D., [1988] A.J. No. 727 at p. 12 (Alta. Prov. Ct., F.D.). Any study of “palm tree justice” would have to address the cultural bias implicit in the expression: in his typology of adjudication, Max Weber used the expression “khadi-justice” to illustrate “substantive/irrational” judging, in contrast to the “formal/rational” character of, say, European civil law systems. See Kronman, A., Max Weber (London: E. Arnold, 1983) at 72–80.Google Scholar For a brief outline of the use of the expression “Humpty Dumpty justice” in Canadian courts, see L'Heureux-Dubé J. in 2747–3174 Quebec Inc. v. RPAQ, [1996] 3 S.C.R. 919 at 1008. The “living tree” metaphor is recognised as standing for a distinct method of interpretation. See e.g. Attorney-General (Canada) v. Attorney-General (British Columbia), [1994] 2 S.C.R. 41. Its first usage is attributed to Lord Sankey in Edwards v. Attorney-General (Canada), [1930] A.C. 124 at 136.

^6. [1997] 2 S.C.R. 217 at 232–33.

^7. Ibid. at 236.

^8. See e.g. Yoo, J. C., “Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts” (1996) 84 Calif. L. Rev. 1121.CrossRefGoogle Scholar

^9. For a recent example of its use for its attention-getting effect, see Burridge, S. J., “A Metric Measurement of the Chancellor's Foot” (1982) 41 Cambridge L.J. 290.CrossRefGoogle Scholar

^10. See e.g. Klinck, D.R., “‘Nous sumus a arguer la consciens icy et nemy la ley’: Equity in the Supreme Court of Canada” in Brierley, J. E. C. et al. , ed., Mélanges offerts par ses collègues de McGill à Paul-André Crépeau (Cowansville: Yvon Biais, 1997) 535.Google Scholar

^11. So, for example, Hawkins and Martin distinguish judicial decision-making based on “established principles” from that based on “purely subjective criteria” and insist that “[p]rincipled judging is the opposite of ad hoc, result-oriented judging.” Hawkins, R. E. & Martin, R., “Democracy, Judging and Bertha Wilson” (1995) 41 McGill L.J. 1 at 8, 9.Google Scholar

^12. The Expansion of the Common Law supra note 4 at 2.

^13. See “Introduction” in Table Talk, supra note 1 at xi.

^14. Milward claims that “truely ye Sence and notion here is wholly his; and most of ye words …” Table Talk, ibid. at 1. Contemporaries regarded it as Selden's work: “Mr. J. Selden writt a 4to booke called Tabletalke; which will not endure the Test of the Presse” in Dick, O. L., ed., Aubrey's Brief Lives (London: Secker, Warburg, 1960) at 272.Google Scholar Selden's work is seen as the “first major English contribution to the continental genre known as ‘ana’.” Thornton, J., Table Talk From Ben Jonson to Leigh Hunt (London: J. M. Dent, 1934) at ix.Google Scholar

^15. Christianson, Paul, Discourse on History, Law and Governance in the Public Career of John Selden, 1610–1635 (Toronto: University of Toronto Press, 1996), 289.Google Scholar

^16. In the “Preface” to his The History of Tithes (London: 1618) at 17, Selden speaks self-consciously of himself as a common lawyer, a title of which “I haue long labourd to make my selfe worthy.” How far he succeeded is perhaps indicated by his having, for at least some of his contemporaries, become the measure of legal accomplishment. Robert Whitehall, in a poem entitled “Carmen gratulatio Edwardo Hide” (1660), calls upon Hyde to “[m]ake law amends for its too long disgrace” and expresses the hope that “when You shall (late may it be) go hence,/You may out-vie great Seldens Monuments.”

^17. See e.g. Yale, D. E. C., “Introduction” to Lord Nottingham's Chancery Cases, vol. 1 (London: Selden Society, 1957) xxxviiGoogle Scholar; Plucknett, T. F. T. & Barton, J. L., “Introduction” to St. German's Doctor and Student (London: Selden Society, 1974) xxixGoogle Scholar; Vinogradoff, P., “Reason and Conscience in Sixteenth-Century Jurisprudence” (1908) 24 L.Q.R. 379Google Scholar; Allen, supra note 3 at 392; and the anonymous The Practice of the High Court of Chancery (1672; reprinted London, 1870) at 71, which notes that “a great sort of the titles of that [civil] law, are Titles of Equity”. Baker, J. H., “The Common Lawyers and the Chancery: 1616” in Baker, J. H., ed., The Legal Profession and the Common Law: Historical Essays (London: Hambledon, 1986) 205 at 205Google Scholar, discusses the tension between the common lawyers and “the newer systems, most of them worked out by Civil lawyers,” and, at 207, points out that the events of 1616 have been portrayed as “the culmination of a long-standing conflict between the common lawyers and the jurisdictions based on discretion, Civil Law, and prerogative.”

^18. Pollock, F., “The Transformation of Equity” in Vinogradoff, P., ed., Essays in Legal History (London: Oxford UP, 1913) 286 at 294–95.Google Scholar

^19. See Rowse, A. L., Four Caroline Portraits (London: Duckworth, 1993) at 133.Google Scholar Baker, supra note 17 at 207 observes that the Chancery might be regarded as “the supreme ‘prerogative court’.” It should be noted, however, that Selden did write A Brief Discourse Touching the Office of Lord Chancellor, dedicated to Francis Bacon when he was Chancellor, and published in 1671. This work seems to be non-polemical—essentially relating to the early history of the office of Chancellor.

^20. Marsh, A. H., History of the Court of Chancery and of the Rise and Development of Equity (Toronto: Carswell, 1890) at 103.Google Scholar

²¹ Warr, J., Administrations Civil and Spiritual (London: G. Calvert, 1649)Google Scholar reprinted in Sedley, S. & Kaplan, L., eds., A Spark in the Ashes: The Pamphlets of John Warr (London: Verso, 1992) at 104.Google Scholar

^22. Bacon, N., The Continuation of an Historical Discourse of the Government of England (London: M. Walbanck & H. Twyford, 1541) at 21.Google Scholar

^23. Ibid. at 35–36.

^24. Ibid. at 162.

^25. Hobbes, T., A Dialogue Between a Philosopher and a Student of the Common Law of England (ca. 1670)Google Scholar reprinted (Paris: Dalloz, 1966) at 91.

^26. Table Talk, supra note 1 at 35.

^27. Ibid.

^28. Ibid.

^29. Ibid. at 37.

^30. Ibid.

^31. As contrasted with “roguish,” “measured” means something very specific: disciplined, controlled, known. Measured is interchanged with “ruled.” In Buchanan's, JamesLinguae Britannicae Vera Pronunciatio 1757 ed. by Alston, R. C. (Menston, England: Scolar, 1967)Google Scholar, “measurable” means “that may be measured,” and also “moderate or within bounds.” This is the notion of moderate (as an adjective and as a verb) as found in the definitions of “chancery” in Phillips, Edward, The New World of English Words 1658 (Menston, England: Scolar, 1969)Google Scholar, Bailey, N., Dictionarium Britannicum 1730 (New York: Georg Olms Verlag, 1969)Google Scholar and Kersey, J., Dictionarium Ango-Britannicum 1708 Alston, R. C., ed., (Menston, England: Scolar, 1969)Google Scholar, which states: “The Court of Equity, which moderates the Severity of other Courts, that are more strictly ty'd to the Rigour of the Law.” Measure also relates more generally to the notion of standard (and structure). In addition, it evokes the moral basis for judgment. See also W. West's definition of equity, infra note 50. Schwartz, J. in Re MacDonald Estate (1994), 89 Man. R. (2d) 161 (Q.B.)Google Scholar gives this sense: “I believe the interest of justice, dictated by the facts of this case, justifies a measured and reasoned response rather than an automatic reaction to Martin's misconduct.” McLachlin J. in Soulos uses “measured” in a similar sense: “The goal is but a measured, incremental development of the law on a case-by-case basis.” Supra note 6 at 236–37.

^32. Table Talk, supra note 1 at 43.

^33. Aristotle, , Nicomachean Ethics, trans. ApostleH., G. H., G. (Dordrecht, Holland: D. Reidel, 1975) at 98.Google Scholar

^34. We take this expression from Rolfe B. in Wilson v. Brett (1843), 11 M. & W. 113, 152 E.R. 737 at 739 (Exch.): “I could see no difference between negligence and gross negligence—that it was the same thing with the addition of a vituperative epithet ….” Rolfe B.'s point is something like ours in this paper: a word or expression, repeated but unanalyzed, can become a legal category. Ironically, Rolfe B.'s own expression, “vituperative epithet,” seems to have undergone a similar evolution—repeated, and frequently invoked in lieu of analysis.

^35. Table Talk, supra note 1 at 43.

^36. Ibid. at 104.

^37. Ibid. at 103.

^38. Ibid. at 119.

^39. Ibid.

^40. Selden was not alone in linking the Golden Rule with equity: See Goodman, J., The Golden Rule, or, The Royal Law of Equity Explained (London: R. Clavell, 1688)Google Scholar, which begins with a discussion of Matthew 7:12, “Whatsoever ye would that Men should do unto you, do ye even so unto them.”

^41. Table Talk, supra note 1 at 43–44. This is yet another instance of the strong contractarian theme in Selden's view of the law. Berman, H. J., in “The Origins of Historical Jurisprudence: Coke, Selden, Hale” (1993–1994) 103 Yale L.J. 1651 at 1662CrossRefGoogle Scholar, speaking of “English … Calvinist and neo-Calvinist legal philosophers,” says that “they found the source of positive law in covenants, or contracts, among persons living in association with each other—among believers who constitute themselves freely into a church as well as among citizens who enter into a covenant to found a city or other civil society.”

^42. Recalling Milward's admonition about being mindful of the “when” and the “why,” we should acknowledge that a writer's attitude towards equity will be a function of his political commitments and the times. For example, two of the writers we shall cite—William Lambard (1536–1601) and William West (fl. 1568–1594)—wrote during Elizabeth's reign, although their works were published, or re-published, later; moreover, the former received offices from both Lord Keeper Puckering and Lord Keeper Egerton.

^43. Lambard, W., Archion, or, the High Courts of Justice in England (London: H. Seile, 1635).Google Scholar

^44. Ibid. at 24.

^45. Ibid. at 59.

^46. Ibid. at 80.

^47. Ibid. at 78.

^48. Ibid. at 79. This image is invoked as well in SirDodderidge, John, The English Lawyer (London: I. More, 1631) at 214Google Scholar: the “Court of Conscience” “leaving the inflexible stiffe Iron rule, taketh in hand the Leaden Lesbian rule …”

^49. Ibid. at 81.

^50. West, W., Symboleography (London: Company of Stationers, 1610) fol. 174v.Google Scholar

^51. Ibid. at fol. 175v. He follows this with a parallel image of an apothecary's shop. That the image was a popular one is evidenced by its repetition. See Ashe, T., Epieikeia (London: Company of Stationers, 1609)Google Scholar at sig. Aiiiir. This work, which is a catalogue of cases interpreting statutes “by an Equitie,” is, curiously enough, dedicated to Coke.

^52. Supra note 50 at fol. 175v.

^53. Ibid. at fol. 176v.

^54. Radin, M., “The Conscience of the Court” (1932) 48 L.Q.R. 506 at 508.Google Scholar

^55. Thomas, R., “Cases of Conscience in Seventeenth-Century England” in Morrill, J., Slack, P. & Woolf, D., eds., Public Duty and Private Conscience (Oxford: Clarendon, 1993) at 29.Google Scholar

^56. For some citations, see Thomas, ibid.

^57. Allen, supra note 3 at 389.

^58. Baker, J. H., An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990) at 123.Google Scholar

^59. Haskett, T., “The Medieval English Court of Chancery” (1996) 14 Law and History Rev. 245 at 278.CrossRefGoogle Scholar

^60. Pronay, N., ‘The Chancellor, the Chancery, and the Council at the End of the Fifteenth Century” in Hearder, H. & Loyn, H. R., eds., British Government and Administration (Cardiff: University of Wales Press, 1974) 87.Google Scholar

^61. Y. B. Hill, 4 Hen. VII, fo. 5, pl. 8.

^62. See Thomas, supra note 55 at 45, and Haskett, “The Medieval English Court of Chancery,” supra note 59 at 311.

^63. Audley, T., The Reports of Sir John Spelman, vol. 2, 198Google Scholar, quoted by Guy, J. A., “Introduction” to Christopher St. German on Chancery and Statute (London: Selden Society, 1985) at 79.Google Scholar

^64. Ibid. at 101.

^65. Ibid.

^66. Ibid. at 123.

^67. Pluckett & Barton, supra note 17 at xxvi. See also R. Janda, “Legal Architecture, Equity and Christopher St. German” in Brierley et al., eds, Mélanges Paul André Crépeau, supra note 10 at 373ff.

^68. Supra note 55 at 31.

^69. Reproduced in Yale, D. E. C., “Introduction” to Lord Nottingham's Manual of Chancery Practice and Prolegomena of Chancery and Equity (Cambridge: University Press, 1965)Google Scholar, reprinted (Holmes Beach, Fla.: W. W. Gaunt, 1986) at 78 [hereinafter Manual of Chancery Practice]. Bishop Williams himself is reported to have said: “I will never make any decree, that shall cross the grounds of the common or statute laws, for I hold by my place the custody not of mine own, but of the King's conscience; and it were most absurd to let the King's conscience be at enmity and opposition with his laws and statutes.” Baker, supra note 17 at 227.

^70. Bacon, F., Reading on the Statute of Uses in Spedding, J., Ellis, R. L. & Heath, D. D., eds., The Works of Francis Bacon, vol. 7 (London: Longmans, 1872)Google Scholar, reprinted (New York: Garrett, 1968) at 401. Upon receiving the Great Seal in 1617, Bacon named three causes for his pledge to accept it. The third is “that all men that have to do with the Chancery, or the Seal, may know, what they shall expect. And both set their Hearts, and my Ears at rest, Not moving me to any thing against these Rules: Knowing that my Answer is now turned from a Nolamus, into a Non possamus” (quoted in Resuscitano—Or, Bringing into Publick Light Several Pieces of the Works Civil, Historical, Philosophical, and Theological, Hitherto Sleeping of the Right Honourable Francis Bacon, 3d ed. (London W. Lee, 1671) at 62.

^71. Yale, vol. 1, supra note 17 at xlv. At the same time, it would be simplistic to assume that equity before his time lacked “rules.” See e.g. Sheppard, W., The Faithfull Councellor: or the Marrow (London: E. Dod et al., 1651)Google Scholar, which catalogues a great many of these. Less than 30 years after Lord Nottingham's time, according to usage described in Kersey, Dictionarium Anglo-Britannicum 1708, supra note 31, the court of equity is recognizable as the court “where Controversies are suppos'd to be determin'd according to the exact Rules of Equity and Conscience.”

^72. Yale, Manual of Chancery Practice, supra note 69 at 3. Yale says of these two works that they “sum up the procedural and substantive rules of the equitable jurisdiction in Chancery on the eve of [Lord Nottingham's] work in the transformation of Equity.”

^73. Yale, supra note 17, and Yale, D. E. C., ed., Lord Nottingham's Chancery Cases, vol. 2 (London: Selden Society, 1961).Google Scholar When referring to the cases, we shall simply note the style of cause and the number of the case.

^74. Baker, supra note 58 at 123. See also Haskett, The Medieval English Court of Chancery, supra note 59 at 267.

^75. #123.

^76. Bowyer v. Birds, #285.

^77. Rosser v. Evans, #321. See also #66, #108, #121, #173, #188, #193, #314, #400, #483, #629, #767, #890, #997, #1029, #1154, #1165.

^78. See #66, #173, #749, #753, #809, #992.

^79. Like the word “measure,” the word “ruled” has a complex of meanings, more than one of which is relevant in the present context. Thus, it can mean calibrated and measured, or objective, but also controlled, disciplined, or constrained. See supra note 31.

^80. See e.g. #133, #155, #671, #823, #1077, #1090.

^81. #823.

^82. Supra note 69 at 2001.

^83. Ibid. at 194.

^84. #500.

^85. #307. Again, in Butler v. Harrison (#730), he distinguishes between that which is “between God and [the plaintiffs] conscience” and the business of the court, which is “to see to the just performance of agreements.”

^86. Cudworth, R., The True Intellectual System of the Universe (London: R. Royston, 1678)Google Scholar facsimile ed. (Stuttgart: Friedrich Frommann, 1964) at 898–99.

^87. There may be exceptions. Beverley McLachlin, writing extra-judicially, and referring to Keeton and Sheridan, says that “equity offered relief where the common law shoe pinched.” McLachlin, B., ‘The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: A Canadian Perspective” in Waters, D. W. M., ed., Equity, Fiduciaries and Trusts (Scarborough, Ont.: Carswell, 1993) 37 at 38.Google Scholar This is faintly reminiscent of the shoemaker's shop image used by Lambard and others.

^88. (1985), 62 A.L.R. 420 at 452 (H.C.).

^89. Is it possible that he is conflating Selden with Lord Eldon, thus further collapsing or abbreviating the history of equity into one hybrid code-word?

^90. [1989] 2 S.C.R. 574 at 677.

^91. (1991), 50 B.C.L.R. (2d) 363 at 374 (B.C.C.A.).

^92. [1961] 1 Q.B. 445, [1961] 2 W.L.R. 596, [1961] 2 All E.R. 97 at 103.

^93. Supra note 91 at 376.

^94. By 1995, in Safarik v. Ocean Fisheries Ltd., 12 B.C.L.R. 342 at 383, she was attributing the expression to Selden, although her source for this was again second-hand—SirMegarry's, RobertMiscellany-at-Law (London: Stevens, 1955) at 139–40.Google Scholar

^95. [1994] 2 S.C.R. 807.

^96. R.S.B.C. 1979, c 435, s. 2(1).

^97. Amighetti, L., The Law of Dependants' Relief in British Columbia (Scarborough: Carswell, 1991), 56Google Scholar, quoted in Tataryn, supra, note 95 at 820. We might note that McLachlin J. identifies the need for a more certain measuring device: “there must be some yardstick … by which courts might measure the terms “adequate, just and equitable.” We might note as well that Tataryn is not the only case that quotes this passage from Amighetti. See Wagner v. Wagner Estate (1991), 62 B.C.L.R. (2d) 1 at 19 (B.C.C.A., per Gibbs J.A., dissenting).

^98. (1941), 57 B.C.R. 21 at 45 (B.C.C.A.).

^99. Supra note 92 at 374.

^100. Ibid.

^101. (1992), 65 B.C.L.R. (ed) 264 at 270 (B.C.C.A.).

^102. (1993), 140 A.R. 90 at 100 (Alta. Q.B.).

^103. (1995), 102 Man. R. (2d) 291 at 292 (Man. CA.).

^104. An exception is Muldoon J., who in Canada (Minister of Citizenship and immigration) v. Ko (1996), 34 Imm. L.R. (2d) 162 at 163 (F.C.T.D.), notes that “those are expressions which do not refer to feet at all but rather the measure of one's proclivities, one's intentions.” It is not clear whether proclivities and/or intentions are to be identified with “conscience.”

^105. In this, its history perhaps recapitulates the history of many of our words, which were originally metaphorical. An example would be “flexible” in an expression like “equity is flexible.” Presumably, this word initially described physical things which could be bent, and was applied figuratively to concepts, social institutions, etc. But, when we use it now, we no longer think: “Ah, yes, equity is like a willow branch.” “Flexible” has a meaning for us independent of the mediating concrete image. Perhaps a metaphor has become “lexicalized” when it is so commonly used that we simply “know what it means.” The “Chancellor's foot” is a curious example in that it is apparently “catchy” because of its figurativeness, even though “we,” in our use of it, have forgotten that it involves a meaning transferred from one area of experience (human anatomy) to another (moral awareness). There are other possible ways of describing what has happened to it: perhaps its metaphorical nature has simply changed; perhaps it has become what George Orwell calls a “dying metaphor”—that is, one which, although not completely “lexicalized,” we use repetitively, without really attending to its metaphoric import. See “Politics and the English Language” in Shooting an Elephant and Other Essays (London: Seeker & Warburg, 1950); perhaps it has gone from being a metaphor for conscience to being simply a synonym for uncertainty.

^106. See e.g. Wagner, supra note 97 at 21, where Gibbs J.A., dissenting, complains about a case which “introduces a further Chancellor's foot variation on the Chancellor's foot moral duty standard.”

^107. But see Muldoon J., supra note 104, and Hollingworth J. in Holtz v. G. & G. Parkdale Refrigeration Ltd. (1980), 30 O.R. (2d) 513 at 524, who calls the Chancellor's foot “proverbial” and invokes it as a simile for variable law.

^108. Although one does occasionally encounter instances of more innovative applications. Sir Anthony Mason, speaking extrajudicially, says that “[e]quitable doctrines and relief have extended beyond old boundaries into new territory where no Lord Chancellor's foot has previously left its imprint.” A. Mason, “The Place of Equity and Equitable Doctrines in the Contemporary Common Law World: An Australian Perspective” in Waters, supra note 87 at 3. This tends to suggest that the Chancellor's foot has a positive creative role to play: it breaks new ground.

^109. Supra note 95 at 820.

^110. Supra note 90 at 677.

^111. [1989] 1 S.C.R. 426 at 516.

^112. [1996] 1 S.C.R. 128 at 154.

^113. (1986), 2 F.T.R. 68 at 76 (F.C.T.D.).

^114. (1985), 18 D.L.R. (4th) 1 at 29. Clarke C.J.N.S. refers to this observation, and says his case is different, in R. v. Nova Scotia Pharmaceutical Society (1991), 80 D.L.R. (4th) 206 at 234 (N.S.C.A.).

^115. We will recall that the Court of Star Chamber was sometimes referred to as a “court of criminal equity.” See e.g. Yale, supra note 17 at cxxi.

^116. (1980), 46 B.C.L.R. (2d) 266 at 272 (B.C.C.A.).

^117. (1995), 1 B.C.L.R. (3d) 12 at 15 (B.C.C.A.). For other examples, see Bell v. Roy Estate (1993), 75 B.C.L.R. (2d) 213 (B.C.C.A.), Holtz, supra note 107, and Safarik, supra note 94 at 383.

^118. Re Hsu (1994), 82 F.T.R. 203 at 206 (F.C.T.D.). In this, he echoes long-standing sentiments. See e.g. Buchanan's definition of “chancery” in Buchanan, supra note 31: “A court of equity which corrects and moderates the severity of other courts, which are so tied up to the literal expressions of acts of parliament, as oftentimes to become very injurious to the subject.”

^119. Ibid.

^120. Supra note 104 at 163.

^121. (1994), 75 F.T.R. 81 at 86 (F.C.T.D.). Compare his comments in Re Lau (1996), 33 Imm. L.R. (92d) 266 at 268–69: “If courts will not respect the law, if courts abide by the old pejorative of the chancellor's foot, a country sinks into the tyranny of the judiciary.” See also Tello v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L. R. (2d) 18 at 28 (F.C.T.D.), where he says that when the court “steps” according to the length of the Chancellor's foot it acts “outside of the court's constitutional jurisdiction.”

^122. Supra note 98 at 45. O'Halloran J.A. does not give the source of Lord Camden's words; they occur in Doe d. Hindson v. Kersey (1765).

^123. Supra note 121 at 86.

^124. Supra note 5 at 224 (Man. Q.B.). He contrasts this with finding “a firm and ascertainable legal … basis on which to found liablility.”

^125. Supra note 101 at 270.

^126. This is not the only instance of the Chancellor's foot being linked with sexual irregularity. In Re Public Trustee and Toronto Humane Society (1987), 60 O.R. (2d) 236 at 243, Anderson J. quotes from an article by Mockler, E. J., “Charitable Corporations: A Bastard Legal Form” (1966) Can. Bar Papers 229 at 229Google Scholar, in which the author speaks of the “interbreeding” of legal forms, “spawning” “curious results.” The result of one of these “out of wedlock” unions is the charitable corporation: “It has strains of both corporation law and trusts and on the paternal side one sees shades of the Chancellor's foot.” Strangely, in this conceit, the Chancellor's foot seems to have been transubstantiated into an organ of generation.

^127. (1993), 103 D.L.R. (4th) 129 at 133–34 (Ont. C.A.).

^128. [1985] 2 Lloyd's Rep. 470 at 474.

^129. Supra note 91 at 376.

^130. [1980] 2 S.C.R. 834 at 847–48.

^131. Thus, the query “equity/6 conscience” in the database “cj” in Quicklaw yields about 200 instances. The connection is not invariably positive. In Nicholson v. St. Denis (1975), 8 O.R. (2d) 315 at 317 (Ont. CA.), MacKinnon J.A., reacting to counsel's suggestion that determining unjust enrichment was a matter for “the individual Judge's conscience,” said: “If this were a true statement of the doctrine then the unruly horse of public policy would be joined in the stable by a steed of even more unpredictable propensities.” De Weerdt J., in McCarthy v. Inuvik (Town), [1990] N.W.T.R. 215 at 223, quotes this passage, but still concludes, at 226, that “it would be unjust and against conscience to deny the applicant a measure of restitution….”

^132. Lasqueti Fishing Co. v. Royal Bank (1990), 48 B.C.L.R. (2d) 370 at 383 (B.C.C.A.).

^133. (1995), 140 N.S.R. (2d) 116 at 134 (N.S.C.A.).

^134. (1993), 106 Nfld. and P.E.I.R. 271 at 300 (Nfld. S.C. per Green J.).

^135. (1994), 18 O.R. (3d) 317 at 320 (Ont. Ct. Gen. Div., per Steele J., citing Chase Manhattan Bank NA v. Israel-British Bank (London) Ltd., [1979] 3 All E.R. 1025 at 1030. See also Anderson, Smyth & Kelly Customs Brokers v. World Wide Customs Brokers (1996), 184 A.R. 81 at 86 (Alta. CA.): “[E]quity will intervene to protect the dependent or vulnerable party by acting on the conscience of the fiduciary”; Martin Commercial Fueling v. Virtanen, [1997] B.C.J. No. 581 at para. 18 (B.C.C.A.): Equity operates to enforce a contract “against the conscience of the person who signed the document”; Schneider v. Singh, [1996] O.J. No. 617 at para. 31 (Ont. C.J.): “[E]quity and good conscience” should determine the allocation of the costs of litigation; Clarke Drummie v. Ryan, [1997] N.B.J. No. 165 at para. 23 (N.B.C.A.); for Mrs. Ryan “to enjoy her husband's interest forever … would prick equity's conscience.”

^136. Soulos, supra note 6 at 233, citing McClean, A. J., “Constructive and Resulting Trusts—Unjust Enrichment in a Common Law Relationship—Pettkus v. Becker” (1982) 16 U.B.C.L. Rev. 156 at 169Google Scholar, citing Moses v. McFerlan (1760), 2 Burr. 1005, 97 E.R. 676 (K.B).

^137. Hussey v. Palmer, [1972] 1 W.L.R. 1286 at 1289–90.

^138. Soulos, supra note 6 at 35.

^139. Ibid.

^140. Thomas, supra note 55 at 52.

^141. Soulos, supra note 6 at 235.

^142. Ibid. at 236. Compare, e.g., Luscar Ltd. and Norcen Resources Ltd. v. Pembina Resources Ltd. (1994), 162 A.R. 35 at 72 (Alta. CA.), in which Conrad J.A. refers to “sound commercial conscience”—again suggesting a quality that is objectively given by, say, trade custom. The notion of “commercial good conscience” is invoked as well by Des Roches J. in Porta-Flex Products v. Bank of Montreal (1993), 108 Nfld. & P.E.I.R. 221 at 231 (P.E.I.S.C).

^143. Ibid. at 243.

^144. 122 N.E. 378 (1919) at 380.

^145. Soulos, supra note 6 at 241.

^146. Ibid. at 236.

^147. Ibid. at 240. Sopinka J.'s dissent in Soulos does not offer anything very incisive about “conscience.” He does not regard “conscience” alone as a sufficient criterion for awarding the remedy of a constructive trust. He seems to identify “conscience” with “the morality of the act” but expresses no concern about the potential subjectivity or arbitrariness of “conscience” as a criterion. Indeed, he would defer to the “discretion” of the trial judge, and goes so far as to say that “[t]he discretionary approach to constructive trusts is … consistent with the approach to equitable remedies generally….”

^148. See Lakoff, G. & Johnson, M., Metaphors We Live By (Chicago: University of Chicago Press, 1980).Google Scholar For a general summary of the relevance of metaphor in legal discourse, see Klinck, D. R., The Word of the Law (Ottawa: Carleton University Press, 1992), c. 10.Google Scholar

^149. For one thing, his remarks, like Selden's, seem to have been rather impromptu; they were part of an exchange with counsel during oral argument. Moreover, although as we have seen, repudiation of the “Chancellor's foot” ostensibly implies repudiation of “conscience” as a criterion in equity, Lord Eldon himself frequently invoked the notion of conscience.

^150. Indeed, the political concerns so pressing throughout the 17th century seem to have disappeared by the latter part of the 18th century. There is, for example, Adam Smith's apparently strictly legal perspective on the chancellor's authority, as a question of procedure, with little political impact. See Smith, A., Lectures on Jurisprudence (Indianapolis: Liberty Classics, 1982) at 282Google Scholar: “In the last lecture I showed you how the liberty of the subjects was secured in England by the great accuracy and precision of the law and decisions given upon it, as well as the causes which brought this about, as well as how it came to pass that the judges in England have less strength in explaining or correcting the law than any where else—the judges at common law I mean, for the Chancellor is certainly as arbitrary as most. But neither is he very dangerous to the liberty of the subject, as he can not try any causes besides those which have no remedy at common law Nor can he in any case act directly contrary to any method of proceeding laid down by the courts of common law.”

^151. Hazlitt, W., The Spirit of the Age or Contemporary Portraits (1st ed. 1825) (London: George Bell, 1906) at 276.Google Scholar