Equity and Conscience

This article argues that the peculiarly ‘common law tradition’separation of common law and equity had at its origins a principledbasis 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, privateknowledge of facts which could not be proved at common law becauseof medieval common law conceptions of documentary evidence andof trial by jury. The concept of a jurisdiction peculiarly concernedwith this issue allowed the ‘English bill’ procedureto be held back to a limited subject area rather than—asin Scotland and the Netherlands—overwhelming the old legalsystem. By the later 17th century, however, the concept of consciencehad lost its specific content, leaving behind the problem, stillwith us, of justifying the separation of ‘equity’.