Oxford Journal of Legal Studies, Vol. 27, No. 4 (2007), pp. 659–681 doi:10.1093/ojls/gqm015 Published Advance Access November 22, 2007 Equity and Conscience MIKE MACNAIR* Abstract—This article argues that the peculiarly ‘common law tradition’ Downloaded from separation of common law 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 judge’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 evidence and of trial by jury. The concept of http://ojls.oxfordjournals.org/ a jurisdiction peculiarly concerned with this issue allowed the ‘English bill’ procedure to be held back to a limited subject area rather than—as in Scotland 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 ‘courts of conscience’ and ‘courts of equity’, in particular, the Court 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 jurisdictions 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 Court of Chancery in 1875, as developed by the modern court system since’, but with some overtone, occasionally drawn on, of general fairness or justice 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 rights 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 Aristotle’s Nichomachean Ethics, 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 deed, 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 English Law (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 lawyers 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 statute’, 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 canon law. 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 positive law, 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 natural law theory of the Thomist type— law ultimately gets its authority from objective morality 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.