Oxford Journal of Legal Studies, Vol. 27, No. 4 (2007), pp. 659–681 doi:10.1093/ojls/gqm015 Published Advance Access November 22, 2007 and

MIKE MACNAIR*

Abstract—This article argues that the peculiarly ‘common tradition’ Downloaded from separation of and equity had at its origins a principled basis in the concept of ‘conscience’. But ‘conscience’ here did not mean primarily either the modern lay idea, or the ‘conscience’ of Christopher St German’s exposition. Rather, it referred to the ’s, and the defendant’s, private knowledge of facts which could not be proved at common law because of medieval common law

conceptions of documentary and of by . The concept of http://ojls.oxfordjournals.org/ a peculiarly concerned with this issue allowed the ‘English bill’ procedure to be held back to a limited subject area rather than—as in and the Netherlands—overwhelming the old legal system. By the later 17th century, however, the concept of conscience had lost its specific content, leaving behind the problem, still with us, of justifying the separation of ‘equity’.

1. Introduction at University of Cambridge on January 19, 2015 When reading legal materials, there is no temptation to assume that ‘felony’ has a non-legal meaning, since it is a pure term of art, and there is little temptation to suppose that ‘fee simple’ means an uncomplicated price or that the ‘tenant in tail’ has a physical tail. However, ‘Conscience’ and ‘Equity’, when used of ‘ of conscience’ and ‘courts of equity’, in particular, the of Chancery, seem to be particularly prone to attract the assumption that the words when used in a legal context have their ‘ordinary natural’ meaning. The point of this article is to try to explore some of the (possible) technical meanings of these words in their early use. It will become apparent (perhaps gradually) that ‘conscience’ is more helpful than ‘equity’ in understanding the in question; but that in this context its meaning may be some distance from its ordinary meaning. Of course, the modern technical meaning of ‘equity’ is merely ‘the rules which were applied in the in 1875, as developed by the modern court system since’, but with some overtone, occasionally drawn on, of general fairness or as opposed to the letter of the law.1

* Fellow of St Hugh’s College, University of Oxford. 1 F.W. Maitland, Equity, also the Forms of Action at Common Law (Cambridge: Cambridge University Press, 1929) at 1. See further below, text at nn 24–27. ß The Author 2007. Published by Oxford University Press. All reserved. For permissions, please e-mail: [email protected] 660 Oxford Journal of Legal Studies VOL. 27 And ‘conscience’ as it appears in discussions of modern equity refers merely to some particular doctrines of equity in this technical sense, but with particular overtones of ‘honesty’—i.e. that we say the conscience of a party is affected when the Court considers that for him to act in a certain way would not be honest.2 These usages can be pushed back in references in treatises and in the law reports to the early 18th century at the very latest.3 They presuppose a (fairly) stable idea of the scope of the Chancery and analogous equity jurisdictions, i.e. of what these courts do (and/or should) do, but are so general as to be completely without explanatory value in relation to the shape of

the jurisdiction. However, in, and in relation to, the early modern Downloaded from period there are some attempts to make the concepts do more substantial intellectual work.

2. ‘Equity’/‘E""’ http://ojls.oxfordjournals.org/ It is convenient to start with ‘Equity’ both because it is the more general modern usage for the jurisdiction, and because it is ultimately less informative. It is well-known that the source of one version of ‘equity’ is the concept of ‘"""’ found in ’s Nichomachean , where the idea is explained in terms of the difficulty of making general definite rules cover the indefinite range of possible factual situations. ‘Equity’ is then like the lead ruler allegedly invented in ancient Lesbos, which adapts the fixed measurements (the terms of the law) to the irregular stone (the particular situation).4 This concept was at University of Cambridge on January 19, 2015 picked up by Aquinas,5 and was a commonplace of medieval legal thought.6 In Sir John Fortescue’s De Natura Legibus Naturae (1460s) it is linked with the idea that a king ruling ‘politically’, i.e. under law, must or may at some times rule ‘regally’, i.e. by absolute power.7 Its subsequent popularization in connection with the Chancery and analogous jurisdictions seems to have

2 E.g. Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669. 3 E.g. for ‘Equity’ as meaning the English bill jurisdiction of the Chancery, Henry Ballow [attr], A Treatise of Equity (London: D. Browne, J. Schuckburgh, 1737). For ‘conscience’ as meaning the equity jurisdiction, e.g. Pitt v Page [1716] 1 Bro. PC 1, 1 ER 376 at 3, 1 ER 377, ‘by the surrender of the lease, which was voluntary and by , this right of felling was wholly gone and extinguished, as well in conscience as in law’; for overtones of honesty, e.g. the argument of Cowper and Shower for the appellant in Earl of Sandwich v Earl of Litchfield [1700] Colles 104, 1 ER 202, at 105, 1 ER 203: ‘the countess Ann, mother and guardian of Earl John, then an infant, could not, and in conscience ought not, to take advantage of the leases, being expired on the death of her husband, when in exile, and the Bishops deprived, and their estates sequestered and sold; for if guardians or trustees, when they see anything beneficial which belongs to the infant, might, by laying down their own money, take it to their own use, the rules of justice and equity must be inverted’. 4 5.105 (1137a–1138a), heavily paraphrased. The translation by Terence Irwin (Indianapolis, Hackett Publishing 1985) at 143–5 translates ‘"""’ as ‘decency’; but the issues do not alter. 5 ST 1a2æ. 96, 6, in Thomas Gilby (ed.), St Thomas Aquinas Summa Theologiæ vol. 28 (Cambridge: Blackfriars 1966), at 138–41. 6 N. Doe, Fundamental Authority in Late Medieval (Cambridge: Cambridge University Press, 1990) at 101–3, and literature cited therein. 7 Ch. 24, in Thomas Fortescue, Lord Clermont (ed.), The Works of Sir John Fortescue (London: privately printed 1869), 85–86 and trans. at 214–5. WINTER 2007 Equity and Conscience 661 been primarily due to its role in Christopher St German’s Doctor and Student (1523, 1531), where the activity of the Chancery is partially (and rather imperfectly or inconsistently) explained as an application of """; St German’s book was widely excerpted by subsequent writing on Chancery and equity.8 The difficulty with this approach has been identified episodically ever since, most recently by Georg Behrens.9 Aristotelian """ is merely one of the standard approaches to the judicial interpretation of legal rules, i.e. to consider their larger purpose in order to identify their application (or not) to the facts at issue. As such it was a commonplace argument, as ‘the equity of the ’, in both the medieval Downloaded from and the early modern common law courts.10 It, therefore, fails to have explanatory power in relation to the particular activity of the Chancery. It is doing real work in St German’s argument, but it will be better to return to this a little later.

There was a somewhat narrower and more powerful sense available to late http://ojls.oxfordjournals.org/ medieval and early modern lawyers. This was aequitas canonica, canonical equity, a doctrine of medieval . Aequitas canonica probably did have some impact on the Chancery jurisdiction, but, as Barton explains in his discussion of it, it was hard to distinguish from conscientia.11 Certainly what survives of this doctrine in equity as later practised seems to be mainly the idea of general fairness and justice as overriding inconsistent , which is almost as unhelpful as """. at University of Cambridge on January 19, 2015

3. Conscience St German’s discussion of ‘conscience’ is not the only sense of the term used by lawyers—to this we will have to return—but is by far the most important for later lawyers’ explicit discussions of the topic. St German follows, albeit loosely, the medieval theologians. Synderesis is the faculty of moral reasoning, and conscience is the application of this faculty to particular cases. The role of conscience in law thus presupposes a theory of the Thomist type— law ultimately gets its authority from objective based on the place of human beings and human society in the divine creation; synderesis/conscience gives the reasoning being direct access to this, and hence is capable of

8 The current standard edition is that edited by T.F.T. Plucknett and J. Barton, Selden Soc. vol. 91 (1974). For St German’s theory see Barton’s introduction at xx–li. Some examples of excerpting by later writers on Chancery: William West, Symboleography Part II, Chancery (London: Thomas Wight & Bonham Norton, 1597) Sig. A-C1v; Richard Crompton, Laucthoritie & jurisdiction des courts de la Maiestie de la Roigne (London: Charles Yetsweirt, 1594) 41b, 43b; Cary 1–19, 21 ER 1–11; Lord Nottingham, ‘Prolegomena of Chancery and Equity’ ch. 7 ss 1 and 3, in D.E.C. Yale (ed.), Lord Nottingham’s ‘Manual of Chancery Practice’ and ‘Prolegomena of Chancery and Equity’ (Cambridge: 1965). 9 Georg Behrens, ‘An Early Tudor debate on the Relation between Law and Equity’ (1998) 19 JLH 2, at 143. 10 Doe, above n 6, Behrens, above n 9, also Behrens ‘Equity in the Commentaries of Edmund Plowden’ (1999) 20 JLH 3, at 25. 11 Barton, above n 8, xlvii–xlviii. 662 Oxford Journal of Legal Studies VOL. 27 modifying the dictates of positive law. But much in positive law is neutral from the point of view of the natural or moral law, or has generally positive effects from this standpoint. The positive law is thus the starting-point for conscientious reasoning, and it is only exceptionally that the conscience is bound to disregard the law.12 How does this help with explaining the Chancery? Again, the natural law foundations of positive law were a commonplace at this period,13 and it was also a commonplace even in common law courts that in certain circumstances ‘conscience’ in this sense was relevant.14 Put another way, if the rules applied in Chancery are more consistent with natural law than those applied at Downloaded from common law, why don’t the common law courts change their rules? Conversely, this is by and large not St German’s conclusion. On the contrary, he is mainly inclined to assert that the rules of the common law are consistent with or binding in conscience (and therefore incidentally to take a rather narrower view of the Chancery jurisdiction than some Chancery officials did). http://ojls.oxfordjournals.org/ The answer is again that St German’s account is not helpful in understanding the shape of the Chancery English bill jurisdiction. This is, in fact, not very surprising. John Guy has argued forcibly that Doctor and Student should be read as a disguised polemic against the larger claims of the ecclesiastical jurisdiction, and in this sense a first stage in the controversy which was to become explicit with St German’s The Division between the Spiritualty and the Temporalty (1533).15 In this context, it could perhaps also be read as containing disguised polemic against some of the at University of Cambridge on January 19, 2015 more extensive uses of the power of the Chancery by civilian and canonist- trained in the late 15th and early . St German’s explicit defence of the Chancery English Bill jurisdiction against the polemic of the anonymous ‘Serjeant’ in the unprinted Little Treatise concerning of Subpoena is, in a sense, a faux defence: it defends the jurisdiction’s existence while at the same time it, and Doctor and Student itself, adopt a substantially more restrictive view of the jurisdiction than that which was operated in practice. It is in this framework suitable to theorize the jurisdiction in terms either of """ (which implies no more than slight variation on existing legal doctrine) or of conscience analysed in terms of synderesis (which, while it had respectable moral–theological antecedents, had, like """, the effect of giving primacy to the common law). This aspect may help explain the book’s subsequent popularity among common lawyers.

12 Christopher St German, Doctor and Student, above n 8, passim 13 Doe, above n 6, passim. 14 Ibid, passim. 15 John Guy, ‘Thomas More and St German: The Battle of Books’ in Alistair Fox and John Guy (eds), Reassessing the Henrician Age (Oxford: Blackwell, 1986) at 95–120. WINTER 2007 Equity and Conscience 663 4. Conscience is what Chancery does? Traditional Accounts and Modern Literature What about taking the modern approach, i.e. that ‘equity’ and ‘conscience’ just mean (roughly) what the Chancery does? If so, in order to explain the legal meaning of conscience we need to explain what the Chancery does (and why it is done in Chancery rather than in the common law courts). So can we explain what the Chancery does, without recourse to the ideas of conscience/equity? It is not desperately promising, since it is clear that by the middle 16th century

at the latest a defendant in Chancery could demur to the plaintiff’s bill because Downloaded from there was no equity in it.16 However, it has been being attempted roughly since the 1700s and is the dominant modern approach to the problem. In the 18th century, there were current broadly two competing and overlapping approaches to the origins of Chancery equity, both derived

ultimately from different aspects of Francis Bacon’s discussions in his 1600 http://ojls.oxfordjournals.org/ Reading on the Statute of Uses,17 and both drawing on analogies from which did not depend (except in an extremely general sense) on ideas of equity and conscience. The first approach saw the Chancellor as analogous to the Roman Praetor. Common law writs issued from the Chancery, just as, in Rome, formulae and the of iudices issued from the Praetor. Hence, the Chancellor, like the Praetor, had ultimate responsibility for the running of the legal system, and could use it to create new remedies—ius honorarium, 18 which the Roman lawyers distinguished from ius civile. This analogy had at University of Cambridge on January 19, 2015 two implications. The first was that the Chancellor’s jurisdiction extended to wherever the common law was defective in point of justice. The second was that (as had happened to the ius honorarium) equity should in due course become ordinary law, displacing the defective rules of law it was designed to deal with.19 The second line of reasoning saw the Chancellor’s jurisdiction as originating with uses (in modern terms trusts) and expanding from there.20 This could be linked to an analogy between the trust and the Roman fideicommissum, originally unenforceable, then brought under the jurisdiction of a special

16 W.J. Jones, The Elizabethan Court of Chancery (Oxford: Oxford University Press, 1967) at 209–210. 17 Printed London, Matthew Walbanke & Laurence Chapman, 1642; for the date of delivery, J.H. Baker, Readers & Readings in the Inns of Court & Chancery, London: Selden Soc. Supplementary Series vol. 13 (2001) at 49. 18 E.g. Sir Jeffrey Gilbert, The History and Practice of the of Chancery (Washington, DC: WH & OH Morrison, 1874) [written c. 1720, originally published London, 1758]. 19 Lord Mansfield was the great later 18th century proponent of this view, but it was in fact current among radicals from the 1650s and among some senior lawyers from the 1670s at the latest. See M. Macnair, ‘Common Law and Statutory Imitations of Equitable Relief under the Later Stuarts’, in C.W. Brooks and M. Lobban (ed.), Communities and Courts in Britain, 1150–1900, (London: Hambledon, 1997) at 115–31. 20 E.g. Ballow, above n 3, at 103: ‘to which this Court owes its Original [origin], and which, if well consider’d, will still be found to make the principal Business here;’ Sir William Blackstone, Commentaries on the of (1st edn. Oxford: Clarendon, 1765–69, reprint, Chicago: University of Chicago Press, 1979) iii, 51–2. 664 Oxford Journal of Legal Studies VOL. 27 , the praetor fideicommissarius (and ultimately at least partially integrated in the general law). This account could be derogatory, when the later medieval invention of uses/trusts was seen as linked, as some lawyers did, to clergy evasion of mortmain and it was then said that (to para- phrase) ‘the Chancellor, being a clergyman, protected his own’.21 It could also justify a narrow view of the jurisdiction: the Chancellor should only deal with trusts (or arrangements or events which could be assimilated to trusts), not with other areas which were (in fact) routinely dealt with in Chancery equity. Modern literature on the origins of Chancery equity has largely, though not completely, continued to swing between these poles; though it has lost both the Downloaded from Roman law analogies and the immediate links to the legal policy issue of the proper scope of equity. The view of the Chancellor’s jurisdiction as starting with trusts is not commonly found in modern books on the subject, but it was defended by M.E. Avery in 1969 on the basis of a statistical study of Chancery business, since criticized in various ways by several authors, http://ojls.oxfordjournals.org/ and (less seriously) defended by Robert C. Palmer in 1993.22 Its defect is, as it has always been, its inability to explain large aspects of routine Chancery equity business which were present from an early date. The view of the Chancery as providing a regime to deal with miscellaneous defects in the late medieval common law, which lacked any other general or common underlying principle and gravitated to the Chancellor as the minister responsible for justice, was the view of F.W. Maitland and has become substantially the current orthodoxy.23 The idea is that a sort of sclerosis of the at University of Cambridge on January 19, 2015 common law had set in, as a result of which it failed to adapt to new developments in society and economy, and the Chancery provided remedies for these problems. The starting point of Maitland’s approach is the incoherent rag-bag of matters considered to be within the equity jurisdiction in the 19th century. Fonblanque, in his greatly extended edition of Ballow’s Treatise of Equity (1794) suggested that the jurisdiction could be ‘considered in some cases as assistant to, in some concurrent with, and in others exclusive of, the jurisdiction of courts of common law’.24 Fonblanque’s proposal was not followed by

21 E.g. Gilbert, The Law of Uses (London: W. Reed & P. Phelan, 3rd edn, 1811) at 3–4. 22 M.E. Avery ‘The History of the Equitable Jurisdiction of Chancery before 1460’ 62 BIHR 129–44; Palmer English Law in the Age of the Black Death (Chapel Hill: University of North Carolina Press, 1993) Ch. 9 (largely on the basis of older literature). 23 F.W. Maitland, above n 1, Lecture I; Sir John Baker, An Introduction to English (London: Butterworth 4th edn, 2002) Ch. 6; Philip H. Pettit, Equity and the Law Trusts (Oxford: Oxford University Press, 10th edn, 2005) Ch. 1 s 1, at 1–5; Jill E. Martin, Hanbury & Martin, Modern Equity (London: Sweet & Maxwell, 17th edn, 2005) Ch. 1 ss 1–2, at 3–14; Robert Pearce and John Stevens, The Law of Trusts and Equitable Obligations (Oxford: Oxford University Press, 4th edn, 2006) Ch. 1 ss 1–2, at 3–9. Jeffrey Hackney’s review of Snell’s Equity (2001) 117 LQR 150–4 argues that the result is indefensible. 24 Cited here from the 3rd edn, Philadelphia, P. Byrne, 1807, vol. i at 10 n. (f). Fonblanque cites as influencing him John Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill (London: W. Owen, 2nd edn, 1787), but though Mitford has the ideas that in some cases Chancery ‘assists’ the common law (at 4, 104) and that some others involve ‘concurrent’ jurisdiction (at 111), Fonblanque’s tripartite division of the jurisdiction is not present in Mitford’s book. WINTER 2007 Equity and Conscience 665 Barton (1796) or Maddock (1815) and was rejected by Spence (1846), but it was used as the basis of a chapter structure by Jeremy (1828).25 Story (1835–36) followed Fonblanque and Jeremy, but elaborated further and relocated some of the heads. He divided the jurisdiction into concurrent, exclusive and auxiliary, and then divided the first two into substantive and remedial equity. The concurrent substantive jurisdiction included matters of accident (frustrated , lost documents, defective execution of powers, etc.), mistake, and misrepresentation, account, the administration of estates, commissions to ascertain boundaries, matters incidental to dower rights, marshalling of securities, partition, partnership matters, and the Downloaded from enforcement of rents where these were or had become unenforceable at law. The concurrent remedial jurisdiction covered delivery up and cancellation of documents, , interpleader, bills quia timet to restrain an anticipated wrong, bills of to establish a right either not yet contested or not capable of being settled at law and . The exclusive substantive http://ojls.oxfordjournals.org/ jurisdiction covered trusts (mortgages, assignment of chattels in the context and assignments of choses in action, being treated as species of trust), penalties and forfeitures, infants, lunatics and married women, set-off and arbitration awards. The exclusive remedial jurisdiction covered ne exeat regno and supplicavit of the peace (i.e. application to the Chancellor to bind the defendant over to keep the peace). The auxiliary jurisdiction covered and the perpetuation of testimony (the examination of witnesses likely to die before a disputed title would become triable at law). Story’s last chapter at University of Cambridge on January 19, 2015 addresses defences peculiar to equity proceedings.26 Snell’s first edition (1868) offers a simplified and reorganized version of Story’s classification.27 A good deal of the rag-bag quality of this list is attributable to Fonblanque’s original error in dividing the jurisdiction into concurrent, exclusive and auxiliary, which are—except for ‘auxiliary’—categories which lack an opera- tional meaning. More was due to attempting to explain the several branches of the jurisdiction without their origins and original grounds. Thus, on one side of the problem, Coke had made the point that Chancery had two aspects: the Latin side, which was a court of common law and the English side, which proceeded in equity.28 In fact, the Latin side needed to be subdivided, as Gilbert did, into three parts: (a) the officina brevium, which

25 Charles Barton, An Historical treatise of a Suit in Equity (Dublin: P. Byrne, 1796) at 16–23; Henry Maddock, A Treatise on the Principles and Practice of the High Court of Chancery (London: W. Clarke & Sons, 1815) vol. i, contents at xxv–xxx, and at 21; G.W. Spence, The Equitable Jurisdiction of the Court of Chancery (London: V & R Stevens & GS Norton, 1846, 1849) vol. i at 429–34; George Jeremy, A Treatise on the Equity Jurisdiction of the High Court of Chancery (London: J & WT Clarke, 1828) at xxxiii and contents at xxxiv–xxxvi. 26 Story, Commentaries on Equity [1835–36]; cited here from the 13th edn by Bigelow (Boston: 1886; reprint, Littleton, Co., Fred B. Rothman, 1988) which claims to print Story’s original text, with editorial amendments appearing in the notes. 27 Snell, The Principles of Equity (London: Stevens & Haynes, 1868) Contents at ix–xi. 28 Coke, Fourth Institute (London: 1817 edn, reprint, Union, NJ: Lawbook Exchange, 2002), at 79. 666 Oxford Journal of Legal Studies VOL. 27 issued common law writs, (b) the ‘control on the ’, which dealt with patents and inquisitions post mortem in relation to the Crown’s feudal tenants in chief and (c) the Latin side proper, which dealt with common law pleas of persons privileged by holding Chancery office and with recognisances (securities enrolled in Chancery voluntarily or under the of Merchants or of Staple) and audita querela pleas about these.29 The privilege jurisdiction was never more than marginal, and reported litigation on Statutes Merchant and Staple declined dramatically from the second half of the 17th century; the ‘control on the Exchequer’ aspect had been massively reduced in importance as a result of the Tenures Abolition Act, 1660; and the Chancellor’s decision- Downloaded from making role in the officina brevium aspect had also largely disappeared.30 Some relics of these jurisdictions hence became assimilated in the 18th century to the English or equity side. Thus, Ne exeat regno and supplicavit of the peace are not originally equitable at all, but simply prerogative writs not issuable out of King’s , belonging to the officina brevium aspect of the Latin http://ojls.oxfordjournals.org/ jurisdiction, which in the 18th century found an alternative home in being considered as matters of equity. The same is true of the Chancery’s substantive jurisdiction in the enforcement of dower rights (where they existed). The jurisdiction in relation to infants and lunatics was a relic of the ‘control on the Exchequer’ aspect of the Latin side. On the other side of the problem, most of the rest of Story’s rag-bag list actually concerned either accident barring common (rents, bills quia timet and bills of peace, discovery and perpetuation of testimony), at University of Cambridge on January 19, 2015 trusts in the wider sense or remedies ancillary to the substantive jurisdiction (for example, delivery up and cancellation of documents). Thus, for example, Story was correct to ground the mortgage jurisdiction on the mortgagor having trusted the mortgagee with a legal title more extensive than was necessary to the purposes of a security. But the (closely linked) jurisdiction in relation to penalties and forfeitures, specific performance, accounts (including partner- ship) and interpleader also grew out of trust in the wider sense; the marshalling of securities was a secondary growth out of the mortgages jurisdiction; the whole jurisdiction in relation to the administration of estates was originally grounded on express or implied trusts; so, too, was the jurisdiction (which Story linked to infants and lunatics) in relation to married women. By dividing the jurisdiction up in the way they did, Jeremy, Story and Snell made their accounts less conceptually coherent than they could have been. Hence, the attempts of Maddock and Spence, who did grasp the historical development and the role of the Latin side, to construct alternative classifications.

29 Gilbert, Chancery, above n 18 at 9–14. 30 It is still possible to find the Chancellor in 1476 consulting the judges about whether he should issue a of trespass vi et armis or one of trespass on the case: YB T 16 Edw. 4 fo. 7a pl. 8. The disappearance may be due to the rise of the Bill of Middlesex and similar procedures (Baker, Introduction, above n 23, at 42–3, 45–7). WINTER 2007 Equity and Conscience 667 When we go back beyond late 18th and 19th century accounts, to try to use the idea of a rag-bag of miscellaneous defects in the common law to explain the early development of the English or equity jurisdiction in the 15th to 16th centuries, the problem is to identify what particular defects drove the emergence of a separate jurisdiction. Attempts to do this have (in the absence of much in the way of legal literature or reported cases from the Chancery before c. 1590) depended on counting and classifying, in various ways, cases in the very imperfect Chancery records remaining in the national Archives. The predominant tendency, shown in the work of Metzger and Guy for Wolsey and More as Chancellors, and of Post and Haskitt for the 15th century, has Downloaded from been to reinforce the Maitland thesis.31 There are, however, four difficulties with this approach. The first is that, absent a strong grasp of the legal issues (whether common law defects or equitable claims) addressed in plaintiffs’ Chancery petitions, it is very difficult to be confident that the classification for the purpose of analysis of claims made http://ojls.oxfordjournals.org/ by Chancery plaintiffs is actually robust enough for conclusions about legal ideas to be drawn from it.32 This work has largely been done by historian legal historians, rather than legal historians, and the classifications used have lacked much reference to what is known about later 14th and 15th century common law doctrine (which is anyhow, because of limited academic attention, not a great deal for the period between the deposition of Richard II and the victory of Henry VII).33 Second, from the 1450s lawyers had begun to make reports of what happened in Chancery, and there are some fairly clear at University of Cambridge on January 19, 2015 indications that at this period there was a fairly definite conception of what ‘conscience’ implied. Third, ‘Equity is what Chancery does’ is totally unhelpful in explaining the emergence of other equity jurisdictions. Penny Tucker has recently drawn our attention to the London Mayor’s Court in this context;34 the Commons in 1415 complained of the Exchequer; the Requests was

31 F. Metzger, Das Englishe Kanzleigericht unter Kardinal Wolsey (PhD thesis, Erlangen, 1977), and ‘The Last Phase of the Medieval Chancery’ in Alan Harding (ed.) Law Making and Law Makers in British History (London: Royal Historical Society, 1980); John Guy, The Public Career of Sir Thomas More (Brighton: Harvester, 1980) Part II; J.B Post, ‘Equitable Resorts before 1450’ in E. W. Ives and A. H. Manchester (eds) Law, Litigants and the (London: Royal Historical Society, 1983); Timothy S. Haskitt, ‘The Medieval English Court of Chancery’ (1996) 14 Law & Hist Rev at 245. 32 Guy makes the general point of the limitations in principle of case-counting in his ‘The Development of Equitable Jurisdictions, 1450–1550’ in Ives and Manchester (eds) above n 31. I have tried to provide a demonstration of the more specific point that knowledge of the doctrinal grounds of claims is needed for classification for doctrinal legal–historical purposes, albeit for a much later period, in M. Macnair ‘The Court of Exchequer and Equity’ (2002) 22 JLH 75–82 at 77–81. 33 For Richard II’s reign we have the partial vision provided by the introductions in the Ames Foundation Year Book series, and from Henry VII on, Sir John Baker’s work in his introduction to Spelman’s Reports (94 Selden Society, 1977) and in vol. vi of the Oxford History of the Laws of England (Oxford: Oxford University Press, 2003). Some particular topics have been studied in more detail, in particular, the fee tail and common recovery (Joseph Biancalana, The Fee Tail and the Common Recovery (Cambridge: Cambridge University Press, 2001) and contracts [A.K.R. Kiralfy, The Action on the Case (London: Sweet & Maxwell, 1951), A.W.B. Simpson, A History of the Common Law of (Oxford: Oxford University Press, 1975), David Ibbetson, A Historical Introduction to the (Oxford: Oxford University Press, 1999)]. 34 Penny Tucker,‘The Early History of the Court of Chancery: A Comparative Study’ (2000) 115 EHR 791. 668 Oxford Journal of Legal Studies VOL. 27 certainly emergent by the reign of Henry VIII; and by the reign of Elizabeth I such courts were numerous.35 Fourth and finally, the emergence in the 15th and 16th centuries of new courts, like Chancery and other ‘english bill’ courts—not all of them equity jurisdictions—was by no means unique to England, but the English outcome was unique. The Reichskammergericht of the Holy Roman Empire, created 1495, is now not thought to be the key to the ‘Reception’ of roman law in Germany, but it remains clear that it was directed to proceed according to the ‘imperial and common law’ and that its procedure was, in fact, based on the ius 36 commune. The Grand Conseil of Malines, a ‘prerogative’ court erected in the Downloaded from Low Countries by the Dukes of Burgundy in the later 15th century, used a variant form of the procedure of the Parlement of Paris.37 Both courts became courts of appeal of general jurisdiction. Closer to home, the Scots started from the principle of ‘failure of justice’, which is the common ground of most creation of new courts before the modern period, and again http://ojls.oxfordjournals.org/ using civilian procedures. Between the later 15th century and the middle 16th it assumed a general jurisdiction, which led to the displacement of the older Scots forms and procedures more or less modelled on the medieval English common law.38 There was thus a clear common tendency in the 15th and 16th centuries, in those parts of Europe which had not already developed roman- canon systems of procedure,39 for the initiatives of royal government, combined with complaints from litigants about the older forms of procedure, to produce new appellate courts using variants of summary or inquisitorial roman-canon at University of Cambridge on January 19, 2015 procedure, which eventually displaced older procedural forms. In England, the new courts developed, just as elsewhere—Chancery, and various other forms of courts using English bill procedure. They were justified, just as elsewhere, by failure of justice and by the appeal from the King’s potestas ordinata or regulated power to his potestas absoluta or absolute power, hence the significance of this link, noted above, in Fortescue’s De Natura Legibus Naturae.40 But in England they did not become courts of general jurisdiction which displaced the older procedures, but instead courts of specific jurisdiction.

35 An outline list and relevant references is provided in my The Law of in Early Modern Equity (Berlin: Duncker & Humblot, 1999) at 30 n 68 and text therein. 36 For the first point, see the essays by G. Dahm, ‘On the Reception of Roman and Italian Law in Germany’, and W. Kunkel, ‘The Reception of Roman Law in Germany: An Interpretation’ in G Strauss (ed.), Pre-Reformation Germany (London: Macmillan, 1972). For the second, Arthur Engelmann and others, A History of Continental (London: John Murray, 1928) at 526. 37 C.H. van Rhee, Litigation and Legislation (doctoral dissertation, Leiden: 1997) discusses the procedure in detail. 38 H. McQueen, Common Law and Feudal Society in Medieval Scotland (: Edinburgh University Press, 1993) Ch. 8; M Godfrey, ‘The Assumption of Jurisdiction: Parliament, the King’s Council and the College of Justice in Sixteenth-Century Scotland’ (2002) 22 JLH Pt. 3, 21. 39 The ius commune procedure had, of course, developed primarily in northern and central Italy and in the ecclesiastical courts generally. But Naples-Sicily, Spain and France had already developed their own variant forms. There are convenient summaries of the Sicilian, French and Spanish developments in Harold J. Berman, Law and Revolution (Cambridge: MA: Harvard University Press, 1983) at 409–24, 461–77, 511–3. 40 Fortescue, above n 7 and text therein. On potestas absoluta and summary procedure cf. Pennington, The Prince and the Law (Berkeley: University of California Press, 1993). WINTER 2007 Equity and Conscience 669 At the end of the day this unique English experience is at least in part a matter of politics. Leaving aside all other factors, English Bill jurisdiction became part of the political arguments of the 17th century. To this extent, the limited scope in England before the 20th century of forms of judicial procedure derived from the ius commune was decided on the battlefields of the 1640s and by the ‘Protestant Wind’ of 1688. Chancery and some other civil equity jurisdictions did, however, survive. For lawyers to conceptualize this unique path, it was necessary to develop, from the later 15th century on, a concept of the limits on the jurisdiction of courts of this type, i.e. the concepts of

conscience and equity. To understand this point, it is necessary to shift to the Downloaded from alternate line of argument found in the literature.

5. Conscience is what Chancery does? Summary Procedures and the Learned Laws http://ojls.oxfordjournals.org/ It has been a traditional, albeit minority or muted, element of accounts of the early history of Chancery for a long time to make some reference to the fact that the Chancellors before the fall of Wolsey were ‘usually ecclesiastics’, and are therefore likely to have been influenced to some extent in their proceedings in equity by the canon law.41 In 1955, Helmut Coing offered a much more precise analysis in terms of the canonical denunciatio evangelica, a form of summary procedure which was, like equity, supplementary and based on

‘conscience’.42 This approach to the jurisdiction has been followed by Barton at University of Cambridge on January 19, 2015 and, in a more complicated form, by Pronay and by Beilby. These last two authors have argued that there is a transition in the later 15th century—as Tucker puts it, in the Yorkist period—from the earlier indeterminate activity of the Chancellor, to a much more precise and legal activity in the later period, accompanied by a change in the staffing of the court from persons promoted through the clerical staff, to trained civil and canon lawyers, and to an increase in the court’s commercial business.43 Earlier versions of this approach have been criticized by Guy on the basis of the marked indeterminacy of the substantive work of the Wolsey and More courts44 (one can add the difficulties of determining the borders of the jurisdiction of the Elizabethan court found by W.J. Jones45), and by Tucker on

41 Gilbert, Uses, above n 21; Baker, Introduction, above n 23 at 99 ‘most medieval Chancellors were bishops’. 42 Helmut Coing, ‘English Equity and the Denunciatio Evangelica of the Canon Law’ (1955) 71 LQR 223–41. 43 Barton, Introduction to Doctor and Student, above n 8 at xxix–xliv; N. Pronay, ‘The Chancellor, the Chancery, and the Council at the end of the Fifteenth Century’ in H. Hearder and H.R. Loyn (ed.), British Government and Administration (Cardiff: University of Wales Press, 1974); M. Beilby, ‘The Profits of Expertise: the Rise of the Civil Lawyers and Chancery Equity’ in M. Hicks (ed.), Profit, Piety and the Professions in Later Medieval England (Gloucester: Alan Sutton, 1990). 44 Guy ‘Development’ above n 32. 45 Jones, Elizabethan Chancery, above n 16, passim. Jones evades the problem by structuring his book overwhelmingly by procedure and ‘relations with other courts’, with the single exception of Ch. 12, ‘Fraud and Fair Play’. 670 Oxford Journal of Legal Studies VOL. 27 the basis of the difficulties of case-counting and the existence of evidence that the shape of the court’s business—and that of another ‘court of equity’, the London Mayor’s Court—were already taking a fairly firm shape in the early 15th century.46 These criticisms have their own limits. In relation to Tucker’s arguments, it must be important that it was only in the mid- to later-15th century that lawyers began to think that it was appropriate to report arguments in Chancery. The jurisdiction may have taken shape before then—English civilians before the 18th century mainly only speak to us about what they think they do in their jurisdictions through common

lawyers who report them, probably very imperfectly—but the Yorkist period Downloaded from produced the materials on which later lawyers drew to make sense of the jurisdiction. In relation to Guy’s criticisms a similar issue arises. It seems likely that, as Peter Gwyn has argued, the replacement of Warham as Chancellor by

Wolsey was a slightly belated continuation of a policy Henry VIII had adopted http://ojls.oxfordjournals.org/ at the outset of his reign, of differentiating his regime from his father’s by (inter alia) a stronger distancing from the Yorkist period and its legal policies.47 Certainly, Wolsey was no civilian—he had no legal background at all and was directly hostile to lawyers—and, as Metzger’s and Guy’s work showed, the practice of both Chancery and Star Chamber under his regime was to receive almost any claim, but then to send most for compulsory arbitration by local worthies.48 This is anti-law or ‘alternative ’ and if conscience meant what Chancery did in this period, it would mean anything or nothing at at University of Cambridge on January 19, 2015 all. But if Wolsey’s appointment was a change of policy, this means that we cannot make inferences backwards from Wolsey’s practice to that of the learned lawyers who ran the Chancery under the Yorkists and Henry VII. In fact, probably the net effect is that we can distinguish a number of quite sharply distinct periods in the development of Chancery (and conciliar) English bill jurisdiction: (1) In the first half of the 15th century, the jurisdiction was developing, but we know too little about it to be confident of its shape, and it seems that contemporary lawyers did not discuss it either.49 (2) Between the 1450s and 1517 the Chancery’s judicial staff were civilians or canonists and the ‘English side’ of the court began to have a perceptible shape as a jurisdiction—the jurisdiction in conscience—as a result of which common lawyers began to make reports of what was said there.50

46 Tucker, ‘Early History’ above n 34. 47 Peter Gwyn, The King’s Cardinal (London: Barrie & Jenkins, 1990) Ch. 4 esp. 142–43. 48 Metzger, above n 31 and Guy above nn 31 and 32. 49 Tucker’s evidence, above n 34 and that of A.D. Hargreaves, ‘Equity and the Latin side of Chancery’ (1952) 68 LQR 481. 50 Pronay’s, above n 43 and Beilby’s, above n 43 evidence, and from the side of legal output the cases in the Year Books and in Statham’s and Fitzherbert’s Abridgments. WINTER 2007 Equity and Conscience 671 (3) From 1517 the Chancery, and the Chancellor’s other court, the Star Chamber, lapsed into a sort of anti-law. Guy’s work on More shows that this continued after Wolsey, and Jones’s work that it continued as a strong element of Chancery practice till, or nearly till, Egerton in the 1590s. When St German discusses the Chancery and similar jurisdic- tions, he is mainly reliant on Year Book reports from the 1450 to 1517 period, not on contemporary practice. (4) A decisive shift came in the 1590s with the activities of Sir Thomas Egerton as and later Lord Keeper and , and the researches of Lambarde and Caesar and of the

anonymous author of the manuscript tract Forme et Certenty de Bills. Downloaded from These, like St German, used the reported cases from the 1450 to 1517 period as a starting point for consideration of what was legitimately within the jurisdiction, though there was considerable further elabora- tion, particularly by Egerton himself, and Chancery proceedings began to be regularly reported.51 http://ojls.oxfordjournals.org/ The problem of how to construct a theory that could constrain the scope of equity jurisdictions, then, pins itself down to the question of what the lawyers meant by ‘conscience’ in this connection in the later 15th to early 16th century. It was later the 15th century materials that were used to attempt to create real limits to the jurisdiction in the 1590s–1600s, and the developments of the 1590s–1600s produced a core ‘equity jurisdiction’ which is recognizably the same broad shape as the core equity jurisdiction which continued till the

Judicature Acts. at University of Cambridge on January 19, 2015 For this purpose the denunciatio evangelica looks at first sight like a good model. There are, however, some awkward issues. Several of the issues remedied by the denunciatio were already irremediable in Chancery by the reign of Henry VII—for example, pure gift promises (‘nude pacts’, ‘without a consideration’).52 Moreover, if the equity of the later 15th century was recognizable as the aequitas canonica of the denunciatio, it is really rather surprising that the competent civilian and canonist authors of the 1590s and 1600s, who commented on Chancery equity procedure, did not make the identification then, when the evidence was fresher. On the contrary, Sir Julius Caesar, doctor of both laws and Master of Requests, described the procedure in the Requests (substantially identical to Chancery procedure) as ‘entirely according to the summary procedure of the ’;53 Dr John Cosin, the

51 Lambarde’s collections are partially represented by Cary’s reports and Choyce Cases in Chancery in the English Reports; Caesar, L.M. Hill (ed.), The Ancient State Authorities and proceedings of the Court of Requests by Sir Julius Caesar, (Cambridge: Cambridge University Press, 1975); ‘Forme et Certenty’, anonymous Chancery treatise, beginning ‘Forme et Certenty de Bills’, Cambridge University Library MS Gg 2.31 ff 520r–551v. Reports of Egerton’s and later decisions before the regular reporting of the later 17th century, besides those printed in the earlier Chancery reporters in the English Reports, are printed in W.H. Bryson (ed.), Cases Concerning Equity, Selden Soc. vols 117 and 118 (2000, 2001); cf. also Macnair, ‘The Nature and Function of the early Chancery Reports’ in Chantal Stebbings (ed.), Law Reporting in Britain (London: Hambledon, 1995). 52 Contrast Coing, above n 42 at 234 with Simpson, above n 33 ch 6. 53 Caesar, The Ancient State, above n 51 at 8. 672 Oxford Journal of Legal Studies VOL. 27 defender of the ecclesiastical ex officio procedure against complaints about compulsory self-incrimination, discussed denunciation without mentioning the English side of Chancery, and Chancery English bill procedure without mentioning denunciation.54

6. Conscience as a Procedural Concept—(1) the Concept There is, however, an alternative meaning for conscientia, and it is one which is found in medieval common law as well as civilian sources. This meaning is ‘private knowledge or belief’. The background is a maxim which developed in Downloaded from the learned law of procedure from the 12th century: iudex secundum allegata et probata non secundum conscientiam iudicat (the judge should decide according to what is alleged and proved, not according to [his] conscience).55 A standard example is: suppose the judge has personally seen a criminal defendant committing the offence charged, but there is no other evidence. The judge may http://ojls.oxfordjournals.org/ not convict the defendant: that would be to act secundum conscientiam. A secondary consequence is that if matters come up in the proof (e.g. from the examination of witnesses) which have not been alleged in the pleadings, they are irrelevant: the judge must act on what has been alleged and proved. This tag was used from the mid-15th century down to St German’s Doctor and Student and after to distinguish the jurisdiction in conscience from common law. Thus, in 1459 Prysot CJCP argued that at University of Cambridge on January 19, 2015 nous ycy aleroms al iugement secundum allegiatum et probatum et nous ne poims aler oustre et a eux appartient a examiner le consciens we here in this court [Common Pleas] proceed to in accordance with what has been alleged and proved, and we cannot go beyond that; and it is their [Chancery’s] business to examine the conscience. Hence, a common law court could not take notice of the fact that the plaintiff in an action of debt on a bond at law was in jail for contempt of a Chancery order, made by advice of the judges, to surrender the bond in question for cancellation.56 In 1469, Stillington C said that in Chancery home ne serra prejudice, per mispleder ou per defaut de forme, mes solonque la verity de son mater, & nous avomus adjudger secundum conscientiam, & non secundum

54 Richard Cosin, An Apologie of Certaine Proceedings Ecclesiasticall (London by the deputies of Christopher Barker: 2nd edn, 1593), Pt. 2 at 61 (denunciation), Pt. 3 at 50–53 (Chancery). 55 K.W. No¨rr, Zur Stellung des Richters im Gelehrten Prozess der Fru¨hziet: Iudex secundum allegata non secundum conscientiam iudicat (Munich: C. H. Beck, 1967), and discussion more closely related to the present point in Macnair, Law of Proof, above n 28 at 46–54. 56 Reynolde v Knott [1459] YB H 37 Hen 6 fo. 13a pl. 6, Selden Soc vol. 51, Select cases in the Exchequer Chamber vol i, M. Hemmant (ed.) (1933) 147 at 152; Hemmant’s translation. It is noteworthy that allegiatium et probatum is in Latin. WINTER 2007 Equity and Conscience 673

allegata, car si home suppose per bill que un ad fait a luy, & le defendant ne dit rien, si nous avomus conusans que il n’ad fait tort al plaintif, il ne recovera rien a man shall not be prejudiced by mispleading or default of forms, but according to the truth of his matter, and we judge according to conscience, and not according to what is alleged, for if a man supposes by bill that one has done him wrong, and the defendant says nothing, but we have knowledge that he has not done wrong to the plaintiff, he will recover nothing.57 This was a much-quoted dictum, since the case was a leading case on the basis of the Chancery jurisdiction down to 1616. St German ‘unpacks’

it slightly: Downloaded from Item intelligitur quod lex dimittenda est propter conscientiam ubi [lex iudicat secundum allegata et probata videlicet] secundum placitata et triata in re contra veritatem quod etiam tenet [et teneri oportet] in [omnibus] legibus [humanis] Also it is understande that the lawe is to be lefte for conscience/where [the law judges

according to allegations and proofs, that is to say, where] a thynge is tryed and founde by http://ojls.oxfordjournals.org/ verdyt agaynst the trouth for {in the common lawe} [the Iugement must be gyven] accordynge as it is pleadyd & tryed lyke as it is [and ought to be]in[all] other [human] lawes58 What was the allegata et probata or placitata et triata at common law against which conscience fell to be contrasted? The point is that medieval English common law courts were bound by a ‘system of legal proofs’ (legal rules governing the required weight as well as the admissibility of evidence), as were continental judges before the old law of proof was abolished in the period of at University of Cambridge on January 19, 2015 .59 The difference was what these legal proofs were, and how they were articulated with the system of pleading and the substantive law. The jus commune proof system segregated the pleadings, which were merely assertions of facts and legal consequences, from the proof stage. It allowed a very wide range of proofs (confessions, documents, witnesses, presumptions), but then imposed a quantitative standard of proof: for factual claim to be proved, the proofs presented had to amount to the equivalent of the testimony of two unbiased eyewitnesses of good character. The law ranked all the different forms of evidence which could be offered around this standard. At common law, in contrast, a valid pleading asserting an issue of fact had to tender an appropriate form of proof in the pleading. Parties were only permitted to plead to a single issue of fact, and everything not denied was taken to be admitted; pleadings once entered on the record were not in general amendable, and admissions on the pleadings were conclusive against the

57 YB T 9 Ed 4 f. 14 pl 9; my translation. 58 St German, Doctor and Student (n 8) at 116–7. I have slightly simplified the complex textual variations presented by Plucknett and Barton. 59 The structure of the old continental ius commune law of proof is most systematically discussed in J-P Le´vy, La Hie´rarchie des Preuves dans le droit savant du Moyen-Age (Paris: Librarie de receuil Sirey, 1939). 674 Oxford Journal of Legal Studies VOL. 27 party making the admission.60 The forms of proof available were much more limited than in the jus commune, and legal rules regulated what particular proofs had to be tendered to prove particular issues. Thus, to give a couple of examples, in the action of covenant, the claimant had to produce in court, in the course of pleading, a deed under seal containing the terms. If the defendant did not deny that the deed was his deed, he was not allowed to claim that there were other terms outside the deed. Where a liability was established by deed, payment could not be proved except by another deed. These are merely examples drawn from a fairly elaborate body of law. In this context, to aver in pleadings facts triable by jury was merely one among the forms of proof: the Downloaded from court would give judgment on the basis of the (truth-saying) of the jury. The verdict had, in theory, limited scope: it could be used as a proof only of facts which could be ‘notorious’ in the county where the venue was laid, from which the jury came. Hence the point above: it could not in theory be used to establish the existence or terms of two-party agreements (covenants), or two- http://ojls.oxfordjournals.org/ party payment of money, but these must be proved by writing (deed or public record).61 This system had a considerable ability to produce results which were manifestly unjust, not because the substantive rules of law were unjust or because of any difficulties of the interpretative content of factual statements, but because simple facts, like the execution of a deed, now lost, but of which a copy exists, or that a debtor had paid his creditor, were incapable of proof within the rules; or because the rules of pleading laid traps for the parties which at University of Cambridge on January 19, 2015 could be exploited by an unscrupulous to mean that the true disputed issue of fact was never reached. Conscientia or conscience, as contrasted to the allegata et probata, meant knowledge or belief of legally relevant facts which were not appropriately pleaded and proved; and this usage was already present in common law before ‘courts of conscience’ began to appear, in the first place as a description of the knowledge expected of the jury. The author of Bracton De Legibus, writing in the mid-13th century, uses ‘conscientia’ (in a way which is not entirely clear) for jurors’ honest belief, as opposed to certainty. Thus, for one example from among several references, ‘Sunt autem quidam iuratores qui sine visu faciunt

60 Baker, Introduction, above n 23 at 76–9 gives an outline; more detail in Sir William Holdsworth, A History of English Law (16 vols, London, Methuan, 1922–66), iii at 627–56 (on the medieval period), ix at 262–335 (late medieval and early modern down to the 18th century). 61 More detail and supporting citations for the material in this paragraph in Macnair, ‘Vicinage and the antecedents of the jury’ (1999) 17 Law & Hist Rev 537 at 546–54. My argument in that article is that the jury was expected to report local reputation; alternative views are that it was expected to include people who had direct eyewitness knowledge of the facts, or (more plausibly) that it was expected to investigate the pleaded issue and report back. But neither involves the idea that the jury is a judicial body. By the late middle ages it is clear that there was, in fact, a trial at which evidence was led to the jury, but the legal doctrine had not evolved to reflect this fact. David Seipp, ‘Jurors, Evidences and the Tempest of 1499’ in John W. Cairns and Grant McLeod (eds) The Dearest Birthright of the People of England (Oxford: Hart, 2002) at 80–85 collects late medieval evidence. WINTER 2007 Equity and Conscience 675 sacramentum, et ita iurare debent quod veritatem dicent secundum con- scientiam suam salvo visu in modum iuratæ.’ (There are some jurors who take the oath without the view, and thus ought to swear that they will speak the truth according to their , saving the view, in the manner of a jury.)62 The idea that the jurors’ verdict is ‘according to their conscience’ later became a routine tag, and it came to be used in the 16th and 17th century to justify what would now be called ‘jury nullification’ of laws; but even then it was most commonly used to explain that jurors could find a verdict against evidence because they could act of their own knowledge, as opposed to what had been 63 alleged and proved. Downloaded from Analogously, defendants were advised that they could safely wage their law (swear not guilty with the support of oath-helpers) if the facts were as counsel stated them in argument: here what is involved is the defendant’s private knowledge.64 Judicial knowledge could also be ‘conscience’: in 1406, it was said that ‘the record is in the conscience [meaning knowledge] of the judge’; in http://ojls.oxfordjournals.org/ 1486, that a criminal defendant’s alibi was false to the conscientia [knowledge] of the court.65 The idea of the ‘conscience’ or private knowledge of the equity judge, extending beyond what had been formally pleaded or proved by the parties, found procedural expression in the possibility in the later 16th century of the examination of witnesses after the proofs had closed and the parties had been heard, ad informandam conscientiam iudicis (to inform the conscience of the judge); the practice is certainly older than Egerton, who sought to restrict its at University of Cambridge on January 19, 2015 use. The later practice of sending to trial by jury issues of fact disputed in Chancery proceedings and not settled by the depositions and exhibits was also described as being ‘to inform the conscience of the court’.66

62 Bracton on the Laws Harvard University Press & Customs of England, George. E. Woodbine (ed.) and Samuel E. Thorne (trans.), vol. iii (Cambridge, MA: Harvard University Press, 1977) fo. 181b, at 63. Other references at fo. 186, iii 74; fo. 186b, iii 75; fo. 288b–289, iii 337; fo. 289, iii 337. 63 On the criminal side, T.A. Green, Verdict According to Conscience (Chicago: University of Chicago Press, 1985), and J.S. Cockburn and T.A. Green (eds), Twelve Good Men and True (Princeton: Princeton University Press, 1988); on the civil side Doe, above n 6 at 146–48. The argument that jurors could act on their own knowledge without or against the evidence led at trial, used in Bushel’s Case (1670) Vaughan 155 (discussed extensively with reference to other reports in Green at 240–49), was also used in other contexts. J. M. Mitnick, ‘From Neighbour-Witness to Judge of Proofs’ (1988) 32 AJLH 201 at 219–220 collects treatise references to it in the late 17th and early 18th century. The idea had considerable practical significance, since it was used to avoid jurors being bound by technical estoppels in pleading [e.g. Trevivan v Lawrence [1704] 6 Modern 256, 87 ER 1003, 2 Lord Raymond 1036, 1048, 92 ER 188, 196 (and several other shorter reports)]. Without this use of the idea, a great deal more business would have had to go to Chancery. 64 Doe, above n 6 at 150–3. 65 YB M 8 Hen 4 f. 3a pl. 6 (1406); YB H 1 Hen 7 f. 13a pl. 27 (1486). 66 For the practice, Macnair, Law of Proof, above n 35 at 281–6; Henry Horwitz, Chancery Equity Records and Proceedings 1600–1800 (London: HMSO, 1995) at 19–20; for reference to the conscience of the court in this context, see e.g. Lord Bath v Sherwin (1706) Prec. Ch. 261, 24 ER 126, Gilb. Rep. 2, 25 ER 2; or the cases submitted by counsel in Brown v Branford [1698] Colles 8, 1 ER 154; Lloyd v Wynne [1709] 2 Brown PC 374, 1 ER 1006. 676 Oxford Journal of Legal Studies VOL. 27 However, the court was also concerned with the conscientia of the defendant. In 1469, Stillington C said that the plaintiff was not obliged to assert and prove facts lying within the particular knowledge of the defendant (in the case at hand, that the creditor defendant in equity had given the plaintiff debtor’s co-debtor time to pay) because these matters would come out ‘sur le examination del conscience’ of the defendant, i.e. the defendant’s answer on oath to the plaintiff’s bill.67 Now this is clearly not an examination of the defendant’s conscience in the sense of what he honestly believes to be morally right, or of his faculty of moral reasoning as applied to particular facts. It is an examination of what facts he knows or believes to be true. Downloaded from From the beginning until 1873–75, this examination of the conscientia of the defendant was the absolute centre of the fact-finding procedure of Chancery and other equity courts. The defendant was obliged to answer the plaintiff’s allegations on oath, directly and without equivocation, and sometimes to give answers to factual questions put to him by the plaintiff (in the bill, or in certain http://ojls.oxfordjournals.org/ circumstances by examination on interrogatories). In the early 15th century, we have no evidence of any other fact-finding procedure; in the later period, an elaborate apparatus of rules governing the examination of witnesses developed, but in roughly three-quarters of all cases in equity nothing more was done than procure the defendant’s answer on oath and then either go to hearing on that, or lead it as evidence in common law proceedings.68 On the other side of the coin, the fact that the plaintiff claimed on the basis of facts in the peculiar knowledge of the defendant meant an unusual facility of the plaintiff amending at University of Cambridge on January 19, 2015 his or her claim in the course of the dispute. The idea of conscience as private knowledge or belief, not founded on legal evidence, is obviously connected to conscience in the moral sense (hence, the original development of the ‘cases of conscience’ literature as manuals for confessors).69 It also raises interesting epistemological issues about honesty in belief, the interpretive content of perceptions, and so on. But these issues were not material to the early boundary between law and conscience: what took issues into courts of conscience was the simpler proposition that (1) the facts could not be proved at common law because of the structure of the system of pleadings and proofs, and in contrast (2) they could by their nature be proved by examining the defendant on oath with a view to extracting a confession. Now it has to be admitted that, as Tucker has pointed out in criticising Beilby, there were courts which proceeded on the examination of the defen- dant but were not ‘courts of equity’ in the Chancery sense of having a supplementary jurisdiction.70 Two obvious examples are the English Bill

67 YB M 9 Ed 4 pl. 26 fo. 41a. Seipp, http://www.bu.edu/phpbin/lawyearbooks/display.php?id¼153374 (consulted 19 September, 2007), suggests that this report is of further proceedings in the case quoted above at n 47. 68 Macnair, Law of Proof, above n 35 at 58–9 and literature cited therein. 69 Barton, Introduction to Doctor and Student, above n 8 at xxviii. 70 Tucker, above n 34 at 805–6. WINTER 2007 Equity and Conscience 677 revenue courts, and those variants of the statutory summary jurisdiction of of the peace which allowed conviction ‘on examination’.71 However, the point is not simply the centrality of the examination of the defendant— which was common to all forms of summary procedure—but the fact that this is, in connection with Chancery equity, theorized in terms of the ‘conscience’ of the defendant, and of leaving the procedure of the common law, which required facts to be alleged and proved, in favour of this ‘conscience’ and the ‘conscience’ of the Court.

7. Conscientia as Private Knowledge: Substantive Implications Downloaded from Three things are to be helpt in Conscience, Fraud, and accident, and things of confidence. This tag was attributed by Sir Edward Coke to Sir Thomas More.72 It is a brief and substantively accurate summary of the core nature of civil http://ojls.oxfordjournals.org/ equity jurisdictions. Fraud is self-explanatory, but had a fairly extended sense of any sort of sharp practice, perhaps roughly corresponding to the roman law dolus. Accident covered all sorts of cases where contracts or conditions could not be performed as intended because of changed circumstances, or facts could not be proved because of lost or suppressed documents, dead or otherwise unavailable witnesses, and so on. Confidence is a synonym for trust, but this was wider than technical trusts, extending beyond at University of Cambridge on January 19, 2015 relations in the narrow sense (agency and partnership) to all cases where one party placed reliance on another’s good faith, as, for example, by going on another’s debt, or giving a security for a loan which on its face gave more than merely security rights, and to legal co-owners. As the equity jurisdictions expanded and developed (and in some areas contracted) after Egerton’s reinstatement of these ideas, they never completely lost their conceptual links to this core.

71 For the revenue courts cf. H.E. Bell, An Introduction to the History and records of the Court of Wards and Liveries (Cambridge: Cambridge Universtiy Press, 1953), and R. Somerville, ‘The Duchy of Lancaster Council and Court of Duchy Chamber’ (1941) 23 TRHS 4th ser. 159. For the early summary jurisdiction, John G. Bellamy, and Society in late Medieval and Tudor England (Gloucester: Alan Sutton, 1984) Ch. 2, and for the later 17th and early 18th century Robert Shoemaker, Prosecution and Punishment: Petty and the Law in London and Rural Middlesex c. 1660–1725 (Cambridge: Cambridge University Press, 1991) (discussing controversies over summary jurisdiction at 178–87, 292, 252–67). Tucker’s larger claim that equity jurisdiction cannot be distinguished from common law by the procedure seems more questionable, since she offers no doctrinal analysis, which might reveal specific statutory, /customary, or other specific procedural authority for the practices cited. 72 Henry Rolle, Un Abridgement des plusieurs cases et resolutions del Common Ley (London: A. Crooke and others, 1669) vol. i at 374. Coke also used a variant form of the tag in his Fourth Institute, above n 28 at 84: ‘Three things are to be judged in court of conscience: covin, accident, and breach of confidence.’ Coke is a fairly unreliable witness, but the tag is not playing a substantive role in Coke’s argument, and it seems to be a better fit with the lawyers’ image of the early Chancery than with the fairly well-documented practice of the Elizabethan period. Nottingham (n 8) at 191 treats the two references in Rolle and the Fourth Institute as evidence of an ‘antient rule’ to support the antiquity of the Chancery equity jurisdiction; but this speaks only to Nottingham’s views. 678 Oxford Journal of Legal Studies VOL. 27 What all these heads of jurisdiction had in common was dependence on the special knowledge of the parties and especially the defendant. In particular, both the heads of fraud and confidence depended on the state of mind of the parties to transactions. In a phrase which was later to be a ‘maxim of equity’, ‘equity looks to the intention, not to the form’. But in the common law in the later 15th century states of mind could not be proved: ‘the intent of a man cannot be tried’, said Bryan CJ in 1477, ‘because the devil himself does not know the intent of a man’ (a fortiori, he does not need to say, a jury does not know it).73 The examination of the conscientia of the defendant allows proof of the intentions, expectations and beliefs of the parties to transactions. Downloaded from If this is conscience, it is not ‘conscience’ either in St German’s, or in a lay, sense. Is it within the ‘equity’ of the law? The common lawyers would not have argued, if you had put it to them, that should go unpunished, or people be penalized because their title had been burnt in a house fire or their witnesses had died or the ship they had chartered had been seized for http://ojls.oxfordjournals.org/ purposes, or that an agreement to act as a trustee was not binding. Hence, their notorious inability to explain to More what he was doing wrong as Chancellor.74 What they did argue—eventually with partial success on the criminal side but largely unsuccessfully on the civil side—was that their rigid rules of procedure and proof were more in the interest of the vast majority of litigants than the equitable focus on the conscience of the party: that equity denied the defendant due process.75 But the matter is not quite so simple. The problem is that the distinctive at University of Cambridge on January 19, 2015 features and structure of the medieval common law were almost entirely procedural. Contracts provide a good concrete example. If, as the courts of conscience do, we have regard to the intentions of the parties rather than to the form, we have a problem establishing the intentions of the parties. An obvious starting point is what sort of contract they were engaged in: the courts of conscience/equity were frequently confronted with mortgages, or trust arrangements, which appeared on the face of the documents to be conveyances on sale. But the medieval common law of the 14th and 15th centuries made very limited use of distinctions between sorts of contracts. For distinctions between sorts of contracts the starting point had to be Roman law as interpreted in the middle ages.76 Of course, lawyers could say, it is all right, we are not really

73 YB P 17 Edw. 4 fo. 1a pl. 2: ‘moy semble le plee n’ est bon sans monstre que il ad certifie l’ auter de son pleasure, car comen erudition est que l’ entent d’ un home ne serra trie, car le Diable n’ad conusance de l’ entent de home’ (arising from a pleading issue). 74 William Roper, The Life of Sir Thomas More, in Richard S. Sylvester and Davis P. Harding (eds), Two Early Tudor Lives (New Haven, CT: Yale University Press, 1962) at 221–2. 75 Most clearly in The Replication of a Serjeant at the laws of England replying to Doctor and Student in Guy (ed.), in Christopher St German on Chancery and Statute (London: Selden Soc. Supplementary Series vol. 6, 1985) at 99–105. 76 Cf. James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon, 1991). WINTER 2007 Equity and Conscience 679 relying on the civil law, because Glanvill and Bracton contain this material (both lifted their accounts of contracts to a greater or lesser extent from Justinian).77 But nonetheless, contractual ‘conscience’ and ‘equity’ wound up looking a good deal more like aspects of the European jus commune than it did like the late medieval common law. The balance created by arguments for equitable examination of the conscience and for common law due process did allow the creation of a rough shape to the subject-matter jurisdiction of courts of equity. In this framework, the civil side in Chancery and the equity side of the Exchequer, could survive the 1641 abolition of Star Chamber and be ‘naturalized’ as Downloaded from a particular jurisdiction within ‘Westminster Hall’.

8. The Fate of ‘Conscience’ in Equity

The possibility of making this analysis of ‘conscience’, as contrasted with http://ojls.oxfordjournals.org/ common law, as an organizing principle of the equity jurisdictions, depends on specific characteristics of the late medieval common law procedure: judgment secundum placitata et triata, and the non-triability of issues of intention or states of mind. But by the middle 17th century, and possibly earlier, this distinction had largely become meaningless. On the one hand, the common lawyers had massively subverted their own due process rules through the Bill of Middlesex and other fictional devices, which meant that most of the substantive issues between parties were not at University of Cambridge on January 19, 2015 pleaded but left to be argued out on or after trial. On the other hand, they had re-conceptualized trial by jury, away from its theoretical medieval role as a form of proof by witnesses, towards a new conception of the jurors as judges of fact. Along with this a new branch of law, the law of evidence, grew up; and it allowed consideration at trial of a variety of evidence which could go to establish party intentions, such as informal letters, accounts, conversations with third parties, and other forms of circumstantial evidence.78 By 1650, to say that the intention of a man could not be tried would have made no sense. The common law courts had already started to absorb the accident jurisdiction, a process which was not entirely complete until the 19th century,79 and in spite of episodic arguments the other way, the majority of lawyers had come to accept that Chancery’s accounting metho