Conscience, Equity and the Court of Chancery in Early Modern England

Dennis R. Klinck

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780754667742
• eBook ISBN:
  9781317161943
• Topic: History
• Subtopic: World History
• Index: History

Judicial equity developed in England during the medieval period, providing an alternative access to justice for cases that the rigid structures of the common law could not accommodate. Where the common law was constrained by precedent and strict procedural and substantive rules, equity relied on principles of natural justice - or 'conscience' - to decide cases and right wrongs. Overseen by the Lord Chancellor, equity became one of the twin pillars of the English legal system with the Court of Chancery playing an ever greater role in the legal life of the nation. Yet, whilst the Chancery was commonly - and still sometimes is - referred to as a 'court of conscience', there is remarkably little consensus about what this actually means, or indeed whose conscience is under discussion. This study tackles the difficult subject of the place of conscience in the development of English equity during a crucial period of legal history. Addressing the notion of conscience as a juristic principle in the Court of Chancery during the sixteenth and seventeenth centuries, the book explores how the concept was understood and how it figured in legal judgment. Drawing upon both legal and broader cultural materials, it explains how that understanding differed from modern notions and how it might have been more consistent with criteria we commonly associate with objective legal judgement than the modern, more 'subjective', concept of conscience. The study culminates with an examination of the chancellorship of Lord Nottingham (1673-82), who, because of his efforts to transform equity from a jurisdiction associated with discretion into one based on rules, is conventionally regarded as the father of modern, 'systematic' equity. From a broader perspective, this study can be seen as a contribution to the enduring discussion of the relationship between 'formal' accounts of law, which see it as systems of rules, and less formal accounts, which try to make room for intuitive moral or prudential reasoning.

1 Introduction

DOI: 10.4324/9781315573465-1

That conscience played an essential role in the development of English equity is a commonplace. C.K. Allen observes that ‘a philosophical and theological conception of conscience’ was the ‘one general principle which more than any other influenced equity’.¹ A.W.B. Simpson similarly says that ‘the primary principle of decision’ in the ‘fifteenth- and early-sixteenth-century court of Chancery was Conscience’,² and W. Barbour refers to conscience as a ‘juristic principle’ proper to at least the early Chancery.³ Helmut Coing points out that the ‘prominence of conscience is peculiar to English equity,’ and finds ‘no parallel … in Aristotle’s doctrine of equity or in the civil law’.⁴ Jurists of the early period clearly declared that conscience was central. Christopher St. German (c. 1460–1540/41), whose work ‘set the tone’ for ‘almost all’ English legal reflection on equity in the sixteenth century, ‘preserved the teaching of the canon law of the medieval church and its philosophical ideas of conscience’;⁵ Edward Hake (c. 1545–c. 1604) distinguished Chancery equity from the equity of the law generally on the basis that the former ‘is drawne owte and deryved allonly from the conscience of the Lord Chauncellor or the Lord Keeper …’;⁶ and conscience remained an important concept for Lord Nottingham, late in the seventeenth century.⁷ Indeed, observations such as Norman Underhill’s that ‘the “conscience” theory of the chancellor’s jurisdiction’ may have petered out after the seventeenth century⁸ or J.J. Park’s that ‘tribunals quae statuunt ex arbitrio boni viri, et secundum discretionum sanam’ ‘can only be concurrent with an infant state of the science of jurisprudence’⁹ notwithstanding, the discourse of conscience in equity has displayed remarkable staying power.¹⁰

¹ Carleton Kemp Allen, Law in the Making (6^th edn, Oxford, 1958), p. 389. ² A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford, 1975), p. 397. ³ Willard Barbour, ‘Some Aspects of Fifteenth-Century Chancery’, Harvard Law Review, 31/6 (1918): 834–59, p. 838. D.E.C. Yale uses this same expression in the ‘Introduction’ to his edition of Lord Nottingham’s Chancery Cases (2 vols, London, 1957), vol. 1, p. xxxvii. ⁴ Helmut Coing, ‘English Equity and the Denunciatio Evangelica of the Canon Law’, Law Quarterly Review, 71(1955): 223–41, p. 224. This observation requires qualification. Joseph Story, for example, speaks of the ‘settled distinction’ in the civil law ‘between natural obligations, upon which no action lay, but they were merely binding in conscience, and civil obligations, which gave origin to actions’ (Commentaries on Equity Jurisprudence (Boston, 1836), vol. 1, p. 3). Elsewhere, quoting Cicero, he suggests that the Roman Prætor judged ‘according to equity and conscience’ (ibid., p. 7n.). Similarly, Lord Nottingham (1621–82) tells us that civilians divided rights into ‘jus precarium, for which no remedy, jus fiduciarium, for which a remedy but in conscience, and jus legitimum’ (Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’, ed. D.E.C. Yale (Cambridge, 1965; reprinted Holmes Beach, 1986), p. 239). Francis Bacon makes essentially the same observation in his Reading on the Statute of Uses, in The Works of Francis Bacon, eds J. Spedding, R.L. Ellis and D.D. Heath (14 vols, London, 1857–74), vol. 7, p. 401. This does not, of course, indicate that any general jurisdiction based on conscience existed in the civil law, but it does suggest that the concept was not alien to it. ⁵ ‘Introduction’ to Edward Hake, Epieikeia: A Dialogue on Equity in Three Parts, ed. D.E.C. Yale (New Haven, 1953), p. xiii. ⁶ Hake, p. 122. ⁷ See D.R. Klinck, ‘Lord Nottingham and the Conscience of Equity’, Journal of the History of Ideas, 67/1 (2006): 123–47 and Chapter 8 of the present study. ⁸ Norman Underhill, The Lord Chancellor (Suffolk, 1978), p. 92. ⁹ John James Park, What Are Courts of Equity? (London, 1832), p. 20. ¹⁰ See, for example, Margaret Halliwell, Equity and Good Conscience in a Contemporary Context (London, 1997), D.R. Klinck, ‘The Unexamined “Conscience” of Contemporary Canadian Equity’, McGill Law Journal, 46/3 (2001): 571–614, and D.R. Klinck, ‘The Nebulous Equitable Duty of Conscience’, Queen’s Law Journal, 31/1 (2005): 206–58.

An enduring difficulty with conscience as a juristic principle, one that may be self-evident to us moderns, is that conscience appears to be ‘a privatized or subjective notion’,¹¹ that is, ‘the subjective sense of right and wrong possessed by a particular individual’.¹² Legal judgment, we think, should be objective, should not be a matter of personal moral sensibility. So, for example, Peter Birks points out that ‘conscience of the [modern] intuitive kind is … antithetical to the rule of law’.¹³ Although this may seem obvious to us today, it has long been a locus of concern in the law. Early in the sixteenth century the author of The Replication of a Serjeant at the Laws of England cautioned about the uncertainty implicit in making the criterion of judgment the ‘conscience of oon man’, for ‘divers men, divers conscience’,¹⁴ and every common lawyer is familiar with the jibe of John Selden (1584–1654), in the seventeenth century, that the dimensions of the Chancellor’s conscience might be as variable as the length of his foot.¹⁵ During the same epoch, Sir Bulstrode Whitelocke (1605–75), one of the Commissioners of the Great Seal during the Commonwealth period, initially expressed reluctance to accept the office because, while ‘[t[he Judges of the Common Law have certain rules to guide them; a Keeper of the Seals hath nothing but his own conscience to direct him …. The proceedings in Chancery are secundum arbitrium boni viri, and this arbitrium differeth as much in several men, as their Countenances differ’.¹⁶ So, what has been identified as the guiding principle of decision in the Court of Chancery, at least historically, has also been attacked as inimical to the very idea of law as comprised of determinate rules.

¹¹ Sharon K. Dobbins, ‘Equity: The Court of Conscience or the King’s Command, the Dialogues of St. German and Hobbes Compared’, Journal of Law and Religion, 9/1 (1991–92): 113–49, p. 127. ¹² ‘Introduction’ to Christopher St. German, Doctor and Student, eds T.F.T. Plucknett and J.L. Barton (London, 1974), p. xxvi. ¹³ Peter Birks, ‘Annual Meigunyah Lecture: Equity, Conscience and Unjust Enrichment’, Melbourne University Law Review, 23/1 (1999): 1–29, p. 22. ¹⁴ Christopher St. German on Chancery and Statute, ed. J.A. Guy (London, 1985), p. 101. ¹⁵ Table Talk of John Selden, compiled by Richard Milward, ed. Frederick Pollock (London, 1927), p. 43. ¹⁶ Bulstrode Whitelocke, Memorials of the English Affairs (London, 1682), p. 373; EEBO image 49724:187.

That conscience might be a variable or mutable standard is not the only—or arguably the most sinister—implication of this concern. As Story for example explains, it potentially also reduces the judicial function to a ‘formidable instrument of arbitrary power’: ‘[i]t would literally place the whole rights and property of the community under the arbitrary will of the Judge, acting … arbitrio boni judicis, and it may be, ex æquo et bono, according to his own notions and conscience; but still acting with a despotic … authority’.¹⁷ This implication, too, was a matter of bitter complaint, at least by the mid-seventeenth century.¹⁸

¹⁷ Story, p. 21. And see J.H. Baker, The Oxford History of the Laws of England, Volume VI 1483–1558 (Oxford, 2003), p. 43, referring to ‘the support which the enforcement of one man’s view of conscience lent to the despotic tendency of the Chancery’. ¹⁸ See, for example, D.R. Klinck, ‘Imaging Equity in Early Modern England’, Canadian Bar Review, 84/2 (2005): 217–47, pp. 238–44.

There are several possible responses to this apparent incommensurability of conscience with what might be regarded as essential features of law. At this point, I want to highlight two of the main ones, which will become recurrent issues in this study.

The first of these I have already adumbrated. Notwithstanding W.H. Bryson’s somewhat surprising claim that ‘[t]he concept of conscience is the same today as it was in the sixteenth century, a sense of absolute right versus wrong’,¹⁹ the consensus of commentators seems to be that the concept of conscience, at least during the late medieval period, was quite different from what it is today. While I do not wish at this stage to explore the nuances, it is clear that at least pre-Reformation accounts of conscience included a significant objective dimension.²⁰ A quick way of summarizing this point is to adopt Potts’s observation that, to the medieval mind, conscience was not a matter of belief or opinion, however genuine or sincere, but in some sense a matter of knowledge.²¹ An objective account of conscience, although perhaps paradoxical to us, would ostensibly be easier to reconcile with its status as a juristic principle, a measure of law.

¹⁹ ‘Introduction’, Cases Concerning Equity and the Courts of Equity 1550–1660, ed. W.H. Bryson (2 vols, London, 2000), vol. 1, p. xlii. ²⁰ See, for example, T.C. Potts, Conscience in Medieval Philosophy (Cambridge, 1980) and Michael G. Baylor, Action and Person: Conscience in Late Scholasticism and the Young Luther (Leiden, 1977). ²¹ Potts, pp. 20, 41.

So, one possible answer to the apparent rift between the subjectivity of conscience and the necessary objectivity of law is that, at the time when conscience was the informing principle of equity, it was itself an objective notion and therefore not incongruous with law. Apart from the obvious objection that, while this might justify the prominence of conscience in early equity it cannot justify its continuing invocation today—a point which is only by implication part of my study—this explanation raises other difficulties. Notably, as we have seen, there were complaints about the perceived subjectivity of conscience at least as long ago as the sixteenth century. At a time when the ‘science of jurisprudence’ was ostensibly still in an ‘infant state’ and when conscience was still seen as intimately a part of equity, it was viewed by some as problematic.

Any rationalization of ...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• 1 Introduction
• 2 Conscience and the Medieval Chancery
• 3 The Early Sixteenth Century and Christopher St. German
• 4 The Later Sixteenth Century
• 5 Protestant Conscience One: The early Seventeenth Century
• 6 The Conscience of Early Seventeenth-Century Equity
• 7 Protestant Conscience Two: The Later Seventeenth Century
• 8 Later Seventeenth-Century Equity and Lord Nottingham
• 9 Conclusion
• Bibliography
• Index