Abstract

In lieu of an abstract, here is a brief excerpt of the content:Lord Nottingham and the Conscience of EquityDennis R. KlinckI. Introduction"There is nothing more in our Mouths than Conscience," wrote John Sharp in the 1680s, echoing a sentiment that had been expressed before in the seventeenth century.1 Indeed, one modern writer has observed, uncontroversially, that that century "can justly be called the Age of Conscience."2 Among the foci of this preoccupation one can identify such topics as moral and religious casuistry and "liberty of conscience." My focus in this paper is somewhat different: conscience as a criterion of judgment in the Court of Chancery—the court of equity—and particularly its meaning for Heneage Finch, Lord Nottingham, successively Lord Keeper and Lord Chancellor from 1673 to 1682, a seminal figure in the history of English equity.The intimate connection of conscience with the equitable jurisdiction [End Page 123] is a commonplace,3 and certain aspects of it have been quite thoroughly studied.4 A central problem that has been identified with resort to conscience as a criterion of legal judgment is its subjective and hence ostensibly arbitrary nature. This concern goes back a long way. Thomas Audley, in 1526, argued that conscience was an uncertain ground of law because "it depended upon the 'arbitrament' of one man, the chancellor alone."5 The author of The Replication of a Serjeant at the Laws of England similarly raised the complaint of "divers men, divers conscience."6 No doubt the most remembered comment of this sort is John Selden's that the spaciousness of chancellors' consciences might vary as much as the length of their respective feet, so that equitable adjudication on the basis of conscience was "a roguish thing."7 Nottingham himself balked at the idea that justice might be dispensed according to the kind of conscience that amounted only to "the pleasure of a Court which took upon itself to be purely arbitrary."8Indeed, as the father of systematic equity,9 Nottingham apparently devoted himself to the project, undertaken in some measure by certain of his predecessors,10 of making the jurisdiction regular. He repeatedly makes this [End Page 124] point. In the case just cited, he observes that "equity itself would cease to be Justice if the rules and measures of it were not certain and known" and that "conscience" has to be "dispensed by the rules of science" (639). "Rules," "measures," and "science" are by-words of his preoccupation. Elsewhere, he asserts that "if equity be tied to no rule... everything becomes arbitrary."11At the same time, he did not abandon conscience as a kind of touchstone of equity. He refers to it repeatedly, and often speaks of Chancery as a "court of conscience,"12 as if this was a perfectly natural way of describing it. So the question becomes: how did he reconcile the tendency towards arbitrariness thought to be implicit in "conscience" with the ruled, measured, scientific system that he sought to develop? Or putting the question slightly differently: how did he understand or limit the notion of "conscience" so as to make it compatible with the "regular equity" to which he aspired?What appears to have been a crucial distinction for Nottingham in this regard was that between private conscience and public, or perhaps civic, conscience. In the Prolegomena, he says that "there is a twofold conscience, viz. conscientia politica et civilis, et conscientia naturalis et interna" and that "[m]any things are against inward and natural conscience, which cannot be reformed by the regular and political administration of equity" (194). He makes the point again in "the great case" of Cook v. Fountain: "With such a conscience which is only naturalis et interna this Court hath nothing to do; the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures...."13 As Yale points out, this distinction was not new with Nottingham. The distinction between the forum internum and the forum externum was venerable;14 an anonymous Elizabethan case distinguishes between matters of conscience in which equity will intervene and those that must be left to the party's own moral judgment;15 Francis Bacon recognized, at least as alternatives, a party...