“Science”

We must, however, qualify the possible contexts for Nottingham's understanding of “science.” As Barbara Shapiro notes, the view adumbrated in the previous paragraph was more characteristic of Continental than of British intellectuals. The former, she says, had “a greater commitment to rationalism, certainty and mathematical demonstration.”Footnote ³⁷ Here she is referring to scientists generally and not specifically to jurists, but she does for example point to civilian forms of proof, which she calls “a kind of numerical jurisprudence,” as exemplifying the tendency.Footnote ³⁸ And Hoeflich observes that Roman or civil law methodology was seen as more concordant with deductive or syllogistic reasoning than was the method of “customary law” (like the common law), which he describes as “enumerative.”Footnote ³⁹

The person most associated with the revolution in scientific theory in England was probably Francis Bacon—himself of course a lawyer and indeed Lord Keeper/Chancellor (1617–21). But, when Hoeflich, say, observes that “for Bacon, law, like astronomy or chemistry, was a science, and was susceptible to the application of reason and the new scientific method,”Footnote ⁴⁰ we should not assume that he was applying “the geometric paradigm,” or taking mathematics as his model. As is well known, Bacon's scientific approach was essentially empirical, what the first historian of the Royal Society has called “the Experimental Philosophy” or “the right course of slow, and sure experimenting.”Footnote ⁴¹ Daniel Coquillette has argued that, like his general scientific approach, Bacon's approach to law and lawmaking was “empirical” and “inductive,”Footnote ⁴² involving close observation of the phenomena of the law and deriving axioms from that observation. My point at this stage is simply to note that, while the seventeenth century may have witnessed the emergence of “a new science,” that science should not be taken to have been a unitary phenomenon. Science as the syllogistic deduction of conclusions from a priori axioms may not be the same—or yield the same kind of certainty—as science as the postulating of inferences based on the extensive but, by hypothesis, not exhaustive examination of particulars.

Indeed, even within the earlier English empirical tradition, there were significant differences. Both Shapiro and Henry Van Leeuwen, although recognizing Bacon as a progenitor of that tradition, observe that while for Bacon the goal of scientific knowledge was certainty,Footnote ⁴³ later seventeenth-century English scientists or “virtuosi” saw the scientific method as producing some degree of probability only.Footnote ⁴⁴ So, Shapiro notes that the word “science” itself might have become problematic: “In one sense, the scientific knowledge of the seventeenth century was not considered ‘science’ at all, since its principles and conclusions could not compel assent.”Footnote ⁴⁵ Each points out that a school of “natural theologians”—including William Chillingworth, Tillotson, and John Wilkins—postulated schemata identifying the different kinds of assent that were possible in various areas of inquiry. That of Wilkins is more or less typical.Footnote ⁴⁶ He says that from the several kinds of evidence available there are broadly two kinds of assent: “Knowledge or Certainty” and “Opinion or Probability.” But even the first does not always involve absolute certainty. Significantly, he defines knowledge or certainty as the kind of assent arising from the kind of “plain and clear Evidence” that “doth not admit of any reasonable cause of doubting.” Within this category he identifies three subcategories: physical certainty, based on “the Evidence of sense,” “Mathematical Certainty,” involving apparently self-evident propositions such as “the whole is greater than the part,” and “Moral Certainty,” those other matters that admit of no reasonable doubt. The first two he refers to as “infallible” (albeit not absolutely, but only conditionally, infallible), and the last as “indubitable certainty.” The point is that there is not simply certainty and not certainty, but a continuum of relative certainty. Unlike the “geometric paradigm” to which Hoeflich refers, certainty—especially moral certainty—may fall short of absolute demonstration.

Thus, what “science” implied and, indeed, what “certainty” implied were not uncontroversial in Nottingham's time. We do not have any direct statement from Nottingham himself on these matters. That he was aware of and thought in terms of some of the kinds of distinctions we have seen is suggested by his having said, when defending the Declaration of Indulgence (1673), “[a] Mathematical security we cannot have: a moral one we have from the King.”Footnote ⁴⁷ What he understood by certainty, and by “certain measures,” must be assessed by consulting the phenomena—how he actually went about reasoning, and what ingredients went into that reasoning.

Sir Matthew Hale and Legal Science

Just before embarking upon that inquiry, however, we should take account of some of Sir Matthew Hale's reflections on these matters since they might afford insight into or at least a context for Nottingham's appreciation of them. I do not mean to suggest that Nottingham's views corresponded exactly to Hale's. But Hale, like his contemporary Nottingham, was a jurist—one who explicitly made the connection of some of the ideas I have been discussing with the law. Nottingham knew him well, and clearly admired him, or, as Lord Campbell says, “worshipped [him] as his great master.”Footnote ⁴⁸ Nottingham refers to Hale in one place as “Gamaliel”Footnote ⁴⁹ and in another as “the ablest mind” that ever presided over the Court of King's Bench,Footnote ⁵⁰ observing that one could “truly say of his knowledge in the law as St. Augustine said of St. Jerome's knowledge in divinity: Quod Hieronimus nescivit nullus mortalium unquam scivit.”Footnote ⁵¹ In this context, Nottingham refers to law as “science”: Hale was an “absolute master of the whole science of the Common Law and even the most abstruse and hidden parts of it.”Footnote ⁵² Here “science” could mean simply “body of knowledge,” but that is only one dimension of its meaning almost certainly for Nottingham and certainly for Hale.

Hale's first biographer, Gilbert Burnet, emphasizes that Hale's approach to law was “scientific.” For example, he says that Hale devoted himself to the study of Roman law because “a Man could never understand Law as a Science so well as by seeking it there,”Footnote ⁵³ and he relates Hale's response to some interlocutors who objected that the common law was “a Study that could not be brought into a Scheme, nor formed into a Rational Science by reason of the Indigestedness of it … or reduced to a Method.” Hale “quickly after … drew with his own hand, a Scheme of the whole order and Parts of it, in a large sheet of Paper.”Footnote ⁵⁴ If “science” entailed only the comprehensive knowledge of the law, presumably knowing all the cases and statutes would amount to science. But more is required: susceptibility to a “method” and to being reduced to a “scheme”—presumably an internally coherent system. For Hale, mastery of the whole science of the law would involve not just encyclopedic knowledge of the “Multiplicity of Cases” but the kind of reasoning they entail and how they fit together. Burnet incorporates into his biography a character study of Hale by “one of the greatest Men of the Profession of the Law”Footnote ⁵⁵—said to be none other than Nottingham himself.Footnote ⁵⁶ In it Hale—who as Chief Baron of the Court of Exchequer (1660–71) had presided over a court exercising equitable jurisdictionFootnote ⁵⁷ and who frequently assisted the Lord Keeper or Lord Chancellor in the ChanceryFootnote ⁵⁸—is described as similarly regarding equity as a science: “He did look upon Equity as a part of the Common-Law, and one of the Grounds of it; and therefore as near as he could, he did always reduce it to certain Rules and Principles, that Men might Study it as a Science, and not think the Administration had anything arbitrary in it.”Footnote ⁵⁹ Campbell remarks that in this passage Nottingham “may be considered as having drawn his own portrait.”Footnote ⁶⁰

One fairly compact treatment of the relevant issues occurs in Hale's reflections on Hobbes's “Dialogue of the Common Laws,”Footnote ⁶¹ notably in the first part, “Of Laws in Generall and the Law of reason.” Hale begins by considering various meanings of “reason.” The first of these is what might be called the reason inherent in things, which Hale styles “Subjective reason,”Footnote ⁶² an epithet that the modern mind might not find entirely apt. That is, within things that are to be understood by a second kind of reason, human intellect, is a “Congruity, Connexion, and fitt Dependence of one thing upon another.”Footnote ⁶³ Such reason in things is “antecedent to any Exercise of any humane Reasonble [sic] facultie”;Footnote ⁶⁴ it exists prior to and independent of our understanding. Thus, for example, “the Proportion between Lines and Superficies … and the Reasonableness thereof in the Mathematicks would be antecedent to any Operation of a humane understanding upon them.”Footnote ⁶⁵ Similarly, “in Moralls though the objects thereof are more obscure, and not soe open to a distinct and Cleare Discoverie, yet there is a Certaine Reasonableness and Congruitie, and Intrinsick Connexion and Consequence of one thing from an other antecedent to any Artificiall Systeme of Moralls or Institution of Laws.”Footnote ⁶⁶

Morals and law, like mathematics, have their own internal reason or coherence. One might infer from this that Hale would describe the science of law as the rational inquiry into that preexisting reason, or reasonableness, that is intrinsic to the law. But he in fact fairly radically qualifies this expectation. Although, he says, respecting morals and law “tho the Cõmon Notions of Just and fitt are cõmon to all men of reason,” “of all Kind of Subjects where about ye reasoning Facultie is conversant, there is none of So greate a difficulty for the Faculty of reason to guide it Selfe and come to any Steddiness as that of Laws, for the regulation and Ordering of Civill Societies and for the measurement of right and wrong, when it comes to particulars.”Footnote ⁶⁷ That is, although human reason, which gives us access to the reason of things, allows us to discern general principles of justice, it is not so useful in respect of the particular matters of which laws must be the measure. Respecting such matters, “it is not possible for men to come to the Same Certainty, evidence and Demonstration touching them as may be expected in Mathematicall Sciences.”Footnote ⁶⁸

Because those seeking to answer these particular questions by reason alone come to such discordant conclusions—and, indeed, “are transported from the ordinary Measures of right and wrong by their over fine Speculacons [sic] Theoryes and distinctions”—a different approach is required so that “Men might understand by what rule and measure to live and possess; and might not be under the unknowne arbitrary, uncertaine Judgmt of the uncertaine reason of particular Persons.”Footnote ⁶⁹ Thus, wiser persons “have in all ages agreed upon Some certain Laws and rules and methods of administration of Common Justice.”Footnote ⁷⁰ In words that are reminiscent of Coke, he says that “Institutions of Law” are largely “Artificial.” Although the resulting “certain and determinate law” might have some drawbacks, such as its awkward fit with unforeseen circumstances, it is much to be preferred to an “Arbitrary and uncertaine rule.”

What this means for the “Science of Law” is that it involves not the search for the law's intrinsic rationality, but the application of human reason to acquiring knowledge about the law as instituted. As Hale points out, “if any the most refined Braine under heaven would goe about to Enquire by Speculation, or by reading of Plato or Aristotle … to find out how Landes descend in England … he wou'd lose his Labour, and Spend his Notions in vaine, till he acquainted himselfe with the Lawes of England.”Footnote ⁷¹ Unlike, say, “the Positions and Conclusions in the Mathematics,” which “are more Naturally Seated in the minde then Institutions of Laws,” those of the law, being largely artificial, entail that the “Science of the Law requires much more assiduity and application to itt, then other Studyes.”Footnote ⁷²

Not only does the artificial positing of the particulars of law impart certainty to it, but that certainty can only be maintained if a body of persons have accurate knowledge of it. The integrity of the law depends upon the science of the law: the “Conservation of Laws within their boundes and Limitts,” the maintaining of “a Consonance and Consistence of the Law to it Selfe,” could not be achieved “without much readeing, and observation and Study of the law itself.Footnote ⁷³ Here, Hale emphasizes especially the need to maintain the internal coherence of the law, “a Consonance and Consistence of the Law to it Selfe.” This suggests another dimension to the law as science: it is a self-contained system. This entails at least that its integrity depends upon its observing its “boundes and Limitts” and, probably, that it should resist the intrusion of extraneous elements. Again, this characteristic specifically contributes to its “certainty.”

It might be objected that what Hale is describing here is “strict law,” and that, of course, these are or are conventionally styled to be its features. But, the objection would continue, the whole point of equity is that it is complementary to that law, allowing a discretionary rectification of those cases in which the strict law is too hard or rigorous. As we have seen, Bacon, like Hale and many others, insists that certainty is the “Primary Dignity of Laws.” However, recognizing (again like many others) that “the narrow compass of human wisdom” cannot anticipate every situation that might arise, he acknowledges the need for, among other things, “jurisdictions empowered to decide according to the arbitration of a good man and sound discretion.”Footnote ⁷⁴ One might say that it is just in such jurisdictions, involving “the judgment and discretion of a conscientious man,”Footnote ⁷⁵ that the “reason” about which Hale is so doubtful must operate. Indeed, in Bacon's view, it is because of their discretionary character that “Praetorian” courts must be kept separate; if discretion were allowed in the ordinary courts, “the distinction of cases will not be retained, but discretion will in the end supersede the law.”Footnote ⁷⁶ On this view, what keeps equity limited or confined is not so much that it follows rules, but that its area of operation is kept distinct and within narrow boundaries. Even Nottingham, in the Prolegomena, appears to acknowledge the “irregular” element in equity, at least traditionally: “Equity, being opposite to regular law, it is in a manner an arbitrary disposition administered by the Chancellor in the King's name.”Footnote ⁷⁷

To this objection, however, the answer is manifest. Although equity is associated with discretion, it is specifically equity that Nottingham says must be reined in, must be tied to certain, known “rules and measures.” Indeed, it is just a few pages after he makes the “arbitrary disposition” observation that he says that if equity is not so tied, “all other laws are dissolved, and everything becomes arbitrary.” We have seen, too, that Hale adopted a similar attitude toward equity. What the dubiety does point to is that—leaving aside the more radical question whether any law can be determinate—equity might be more resistant to being rendered certain than “ordinary” law, just because it is conceived to abate the rigor of that law in “extraordinary” cases. Concomitantly, a judge like Nottingham who undertakes to reduce equity to “certain measures” is faced with an unusually daunting task. Examining what he actually does reveals a continuing ambivalence, in spite of his vigorous protestations that equity must be so measured.

Critique of Legal “Nicety”

One aspect of his ambivalence is evident in his often less than wholehearted endorsement of his ostensible model—the “law”—and what it entails. The attitude is illustrated in statements like, “since the plaintiff seeks an extremity and refuses a fair offer …, ‘tis fit to hold him to strict justice,” and his relegating him “to his course at law.”Footnote ¹⁰³ There is something rather pejorative about law and what it entails here. Holding a party to “strict justice” is almost a penalty for his failure to be “fair.” Here, what is more certain, or “strict,” is in some sense reprobated. One is reminded of the invocation of the letter of the law against Shylock attendant upon his declining the exhortation to be merciful.

Other examples, particularly involving an implied critique of legal “nicety”—that is, precision or fineness of measurement—in favor of what is apparently a much more nebulous kind of measure may be cited. In Duke of Newcastle v. Clayton, he says that, “since the Duke had so honourably acquitted himself from any kind of intention to deal hardly by this woman” and “now she stands upon every nicety,” he leaves her to the presumably tender mercies of the law.Footnote ¹⁰⁴ Again, rather more expansive values, like honor (his protestation in Honywood v. Bennett that he has “nothing to do” with such matters notwithstanding) and magnanimity, are set in contrast to “niceties,” the more exact measures that supposedly characterize legal rules. In Gibson v. Kenvyn, a case in which a testator explicitly gave his widow a power of appointment over the residue of his estate, Nottingham refuses to be constrained by the ostensibly clear meaning of words. Observing that “there could be no certain rule in the exposition of powers of this nature, but it ought to vary with the circumstances,” he opines that “such clauses are [not] to be suffered to take place according to the literal sense or legal strictness of the words.”Footnote ¹⁰⁵ And, in Farmer v. Marston, citing the aphorism “apices juris non sunt jura,” he relieves a petitioner not because the strict rule favors him, but because he “thought the case very pitiable.”Footnote ¹⁰⁶

Conscience as the Measure of Equity

Not only does Nottingham sometimes impugn the overly fine measurement that may be thought to characterize the law but he also explicitly opposes it to the standard traditionally associated with equity—conscience. So, for example, in Williams v. Day, he says “let the mother”—an executrix who had entered into an agreement with her co-executor son to pay certain of the testator's debts—“be charged no further than in good conscience she ought to be and not according to the niceties of law.”Footnote ¹⁰⁷ Here we have juxtaposed two contrasting kinds of measures: “the niceties of the law” and “conscience.” Elsewhere, Nottingham similarly remarks that the criterion in Chancery is conscience: while “rights in law are governed by rules of law, … rules in equity are governed only by conscience”;Footnote ¹⁰⁸ a tenancy in tail in equity is “not governed by the statute of Westminster 2, as estates at law, but by the rules of good conscience as they are administered here”;Footnote ¹⁰⁹ he will not countenance a modus decimandi, “though it be according to law,” because it “is utterly against conscience”;Footnote ¹¹⁰ where a previous award is affected by “manifest partiality and injustice” he will not confirm it, “for a court of conscience will never … decree an award against conscience.”Footnote ¹¹¹

That one standard—conscience—is contrasted with another—nicety—does not necessarily of itself mean that the former is uncertain. Indeed, as we have just seen, Nottingham speaks of the rules of good conscience, and, in the quotation from Cook v. Fountain it is specifically conscience that he says must be “tied to certain measures.” In Coulston v. Gardner he identifies “the rules of good conscience” as setting at least some of “the bounds and limits” of sequestrations.Footnote ¹¹² But, as Selden's observations suggest, conscience as a criterion was seen by many as variable. I have addressed this issue in detail elsewhere.Footnote ¹¹³ Here, I want merely to take note of the generally vaguer criteria that conscience seems to entail. This might be exemplified by Nottingham's observation in Salsbury v. Bagott of the effect of a claim's not having been brought for over sixty years: “length of time is not to be measured by revolutions of years only, but by … wilful and inexcusable negligence.”Footnote ¹¹⁴ One would have thought that the obvious certain measure of time would be revolutions of minutes, hours, days, years, and so on. But rather than this more precise, even scientific or mathematical, measure, Nottingham measures equitable time in terms of much harder to pin down factors of conscience. We have noticed other examples of his willingness to invoke rather elusive factors implicating conscience—fairness, honor, absence of hard dealing, sympathetic circumstances, and so on.

Latitude in Equity

In at least one place, and apparently contrary to the purport of some of his other dicta, Nottingham does explicitly acknowledge that the basis for decision making in equity is less constrained than in the law. In Dennis v. Frazier, involving an appeal from a decree previously made, he says “in cases of equity there ought to be much more tenderness in reversing decrees than there is at law in reversing judgments, for in all cases of equity there is some kind of latitude.”Footnote ¹¹⁵ We might recall that in Earl of Feversham v. Watson, certain of the lords invoked the same metaphor of latitude, arguing that the equity administered by the House was less confined than that of the Chancery. Here, Nottingham (who, as we have seen, insisted there on the ruledness of equity) says that there is more latitude in equity than in law. Because of this space for the exercise of discretion, higher tribunals hesitate to interfere; they should not “alter [a decree] merely upon a variety of opinion.”Footnote ¹¹⁶ Presumably, by contrast, judgments at law are more susceptible to review, on the basis that, since the measures of legal decision making are certain and objective—by contrast with the “opinion” involved in the exercise of equitable discretion, there is a fixed criterion of correctness against which to assess the judge's decision. Nottingham's position here does involve a paradox: leaving the decree as it is might, in a sense, contribute to certainty. Thus, he says, reversing the decree might “shew too much levity and incertainty”—at least in the absence of “great necessity.”Footnote ¹¹⁷ Although the initial decision might involve latitude or discretion, and be less certain in that sense, leaving it stand renders it certain in the sense that it is more fixed and final. Since it is a matter of latitude of judgment, a mere difference in appreciation of the case would be too light—as the word “levity” impliesFootnote ¹¹⁸—a measure upon which to disrupt the decision already made.

Precedent and Principle

Nottingham displays a similar ambivalence towards precedent, the observing of which should conduce to making the law known and certain. We have seen that sometimes he considers himself bound by previous decisions, but once more this aspect of what I have called the orthodox view needs to be qualified.

The problem had been raised before Nottingham's tenure as Chancellor in Fry v. Porter, in which Vaughan C.J. had, famously, expressed surprise that Keeling C.J. should cite precedents in an equity case, “for Equity is an universal Truth, and there can be no President in it.”Footnote ¹¹⁹ The argument seems to be that equity is a pure form of justice, immediately discernible by reason, and transcending the rules of positive law. Lord Keeper Bridgman responded by observing that “Presidents are very necessary and useful …, for in them we may find the reason of the Equity to guide us.”Footnote ¹²⁰ Note that he is not saying that precedents are to be blindly followed, but rather that they offer evidence of the reason that infuses equity. Another take on the relationship is offered by the compiler of Reports of Cases Taken and Adjudged in the Court of Chancery, who says that, although “Equity and right Reason in it self is an universal thing,” “Mens Judgments, especially in Politicks or Morals, can seldom be said to amount to Mathematical Decisions: No one can imagine himself to have such refined Powers of Soul as to decree Aequitatem ad pondus.”Footnote ¹²¹ Therefore, precedents are necessary. One thing to note about this is its invocation of the idea of mathematical certainty, and of the difficulty of making some kinds of decisions on the basis of exact weighing of a case in isolation. Another is that it is consonant with Hale's view that, although the general principles of justice are universal and may be discerned by reason, practical decisions can be made certain only by the following of positive rules. A difficulty that emerges is whether making reason, or something like it, the criterion against which to assess those detailed positive rules undercuts the certainty that they are reputed to afford.

Nottingham's position must be understood within this kind of context. Earlier, I noted that in Thornborough v. Baker he declined to follow a precedent because, in his view, it was based on considerations of compassion, not of “right.” That is, he rejected the precedent because of its contamination with nonlegal elements. This approach is consistent with a strict view of legal certainty: legal decision making must be confined, and what is beyond those confines must be excluded. But this is far from a comprehensive account of the bases upon which Nottingham is prepared to reject precedents. Thus, in the same case, he gives as a concomitant reason for disapproving the precedent involving compassion that it applied “the wrong measure of justice”Footnote ¹²² and he approves another because it was “right and just.”Footnote ¹²³ In yet another, he rejects a number of earlier cases because it would be unjust “to maintain them where Conscience and common Honesty was concerned to preserve the people from tricks and cheats.”Footnote ¹²⁴ It is one thing to question a precedent because it ostensibly contains extraneous, nonlegal elements; it is another to question it because you disagree with its application of legal rationales—“justice” and rectitude. At least it can be said that he assesses the precedents, sometimes, against his appreciation of that of which they are supposed to be the evidence: equity.

Elsewhere, he appears to downplay the role of precedent, or even of rules, in Chancery. In Hele v. Hele, he says that the court “shall do what in Conscience [a testator] ought to have done” and comments that, while “the Common Law relieves not particular Cases against the general rule,” “in Chancery every particular Case stands on its own particular Circumstances.”Footnote ¹²⁵ The measure here, conscience, applies in unique ways to each case; this seems antithetical to the idea of a uniform standard or “certain measure.” Of his decision in this case, Nottingham says that “it is not like to be a Precedent.”Footnote ¹²⁶ An individual case might be the measure only of itself. We might here be reminded of Blount's characterization of the artificers of Lesbos: they made “Rules and Squares” in response to their materials, rather than making their materials conform to preset measures.

Equity's Unstable Boundaries

Indeed, Nottingham sometimes appears to reject precedent as an appropriate measure. Asked by counsel in the seminal perpetuities case Howard v. Duke of Norfolk “where will you stop if you do not stop at Childe & Baylie's Case”—that is, a precedent ostensibly on point—he replies: “I will stop everywhere any inconvenience appears, nowhere before.”Footnote ¹²⁷ Stopping implies that one has reached a limit, a point beyond which one may not go. Nottingham here prefers the vaguer and more variable limit “inconvenience” to the more precise and definite one offered by the ruling in a prior case.

Walter Williams records that Nottingham once proclaimed that “he would leap over Hedge and Ditch” to come at justice.Footnote ¹²⁸ Broadly, this suggests that he is prepared to make strenuous efforts to ensure that justice is done. But the metaphor of leaping over hedge and ditch had, I believe, a more specific connotation in Nottingham's time. The use of the hedge and ditch was a common, indeed typical, method of marking the extent of enclosed land, indeed, of enclosing it. In other words, hedges and ditches were not merely obstacles to jump over, as on a hunting course—although they were that—but they were boundaries, limits, measuring confined spaces.Footnote ¹²⁹ So, for example, George Gascoigne admonishes “countrie clownes”—farmers—to set out clear boundaries to their lands: “your closes see you keepe, / With hedge, & ditche, & marke your meade with meares.”Footnote ¹³⁰ As Blomley points out, the hedge had an extended, figurative import, so that “for theologians, as well as for other commentators, the hedge was a common metaphor for impenetrability and the prevention of misrule.”Footnote ¹³¹ Thus, Thomas Watson writes that “When the Devil spurs a Sinner by a Tentation, he will over Hedge and Ditch break all God's Laws.”Footnote ¹³²

By this I do not mean to suggest that Nottingham was a judicial radical, recklessly prepared to demolish established limits—or, much less, to suggest that he was irreverent. But I do want to suggest that he might not have consistently been the legal precisian that he is sometimes portrayed to be. Against his proclaimed commitment to observing certain measures in equity must be juxtaposed his readiness, at least on occasion, to go beyond conventional or formal metes and bounds, or, in other words, not to adhere to Hale's requirement that laws should be conserved “within their boundes and Limits.” Observations such as “in a case so full of equity as the plaintiff had I would not suffer form to be too hard for right if it were possible to get over the objection”Footnote ¹³³ must be understood in this context. “Form,” which may provide precise demarcations or shapes, must sometimes be “got over,” got out of, so as to vindicate less rigid measures, such as “equity” or “justice.”

Perhaps even more significant than Nottingham's readiness to leave the confined, or defined, space of formal equity is his tendency to import “nonlegal” elements into his system, although these are probably two sides of the same coin. As we have seen, one aspect of the quest for certainty is circumscription, defining of limits, including limits upon where one might go to find the rules one is applying. So, for example, one kind of limit might be the previously posited law or precedent, which implies a definition of the norms to be applied. A rather broader or wider limit might be considerations beyond posited law, but nevertheless regarded as intrinsic to law—that is, considerations of “right” or “justice.” We have intimated already that Nottingham is prepared sometimes to exceed both these kinds of limits, or, from another perspective, to bring in elements from outside these confines. Thus, his invocation of precedent as a measure is qualified by his measuring of those precedents against broader but intrinsically “legal” concepts such as “justice.” Moreover, he shows himself ready to admit considerations of emotion (pity) or courtesy (honor) in making decisions, thus going beyond the theoretically legal. Indeed, as we have noticed he even admits “mathematical” reasons into his cogitations. This last example has a dual aspect: on the one hand, mathematical or geometrical reasoning strongly suggests precision and certainty; on the other hand, invoking it involves importing elements from a different system into the process of equitable (that is, legal) decision making. If one aspect of making measures certain is confining them to a closed system, then the opening of the system to perhaps eclectic extraneous elements would presumably compromise that certainty.

In the case of East India Company v. Blake, Nottingham appears to distinguish between situations where there is an established system and where there is not, acknowledging that, in the latter case, a more amorphous kind of measure might be appropriate. He observes that, where covenants are “to be performed in an infidel's country where no ordinary justice can be had,” they “must not be measured by the rules of Common Law but by the rules of natural and universal justice.”Footnote ¹³⁴ This seems to imply that “natural and universal justice” is a default measure, to be invoked in the absence of a developed system of positive law. Concomitantly, it would seem to imply that, where there is such a system, those posited rules are to be the measure, and that broader considerations are somehow extraneous, or “extraordinary.” This assessment would be consistent with Hale's insistence, say, that actual common-law rules of property—and not philosophers' lucubrations on abstract justice—are the proper measure in the municipal system.

Nevertheless, as I have already intimated, Nottingham is not averse to importing notions of broad justice, and related concepts, into his reasoning. A few examples will suffice. In Thornborough v. Baker he observes that “in natural justice and equity” a mortgagee's “principal right” to land is only as security for payment of the debt;Footnote ¹³⁵ in Hatchett v. Bindon he appears to make “the natural honesty of the case” a measure of a party's obligations, in spite of the strict terms of an agreement;Footnote ¹³⁶ in Buckridge v. Buckridge he refuses to execute a prior decree because of its “apparent injustice”;Footnote ¹³⁷ in Earl of Huntingdon et al. v. Greenville, where each party relied on rather legalistic arguments, he says that “both sides were unreasonable” and the “the truth and justice of the case lies between them”;Footnote ¹³⁸ and in Nurse v. Yerworth he asserts that “it is according to natural equity for every man to dispose of his own.”Footnote ¹³⁹ It would of course be perverse to fault a judge for being concerned about justice in exercising his functions, and I am not faulting Nottingham for this. But I do want to suggest that his willingness to invoke broad concepts like justice, honesty, reason, and equity might unsettle the certainty to which he aspires.

Recurring to Nottingham's distinction in the East India Company case, it could be argued that, even where there is a developed system of positive law, there will inevitably be lacunae, situations that the rules do not reach. This would still leave room for principles of justice to be applied, perhaps as the basis for generating specific rules for the new situation. So, arguably, Nottingham's resort to these broader principles need not be incompatible with his insistence on adherence to rules. This account, while plausible in many instances, is problematic for more than one reason. Sometimes he invokes fundamental principles as a reason for not following an existing rule: justice is called upon not just to fill gaps, but effectively to support a competing rule. Moreover, as I have already intimated, it is not only principles of justice that inform his readiness to depart from legal rules.

Importing the “Other”: Extra-Systemic Elements

Thus, even if one might acknowledge that “justice” is intrinsic to the system of law that Nottingham is administering, and that he is therefore not importing extrinsic matter, he does fairly regularly bring into play considerations that appear to be more clearly outside the system.

Some of these importations, while extrinsic, are still “legal” in the sense of being elements of other juridical orders. That is, Nottingham sometimes invokes other (that is, non-English) law. A good illustration of this is Nurse v. Yerworth, a case involving the right of a posthumous son to take under his father's will, which provides for the latter's children. The common-law position, roughly, was that, at least in the absence of explicit language, the son should not take, not having been in rerum natura at the time of the father's death. This is a pretty clear rule. But Nottingham does not like it: the legal rule stands “upon hard terms”;Footnote ¹⁴⁰ it is “of an infinite rigour and extremity”;Footnote ¹⁴¹ moreover, the defendant has already got more than was intended “by a nicety of law and picking holes in the settlements.”Footnote ¹⁴² Although he accepts that the common-law rule governs common-law interests, he refuses to model the equitable approach on that rule. In so doing, he looks to other sources. One, paradoxically, is “the ancient simplicity and integrity of the Common Law,” which he sees as having been distorted, or at least overrefined, by lawyers' “subtlety.”Footnote ¹⁴³ In the present context, this is paradoxical partly for the nostalgia Nottingham (whose project is to transform equity from its own “ancient simplicity”) displays for a less developed legal dispensation but also because one might expect the more fully elaborated common law to be more precise, and the more “primitive” law to be at least less comprehensive, and perhaps more intuitive or vague. Nottingham refers not only to an earlier, in his view more pristine, stage of the common law, but, more significantly, also to other legal dispensations. Observing that “this kind of rigorous construction is against natural and universal justice and would be laughed at in any other part of the world,”Footnote ¹⁴⁴ he looks to how other legal orders would treat the issue. One of these is the “spiritual court” or “court christian,” which he says will take into account “the presumptive intent” of the testator, “notwithstanding the will.”Footnote ¹⁴⁵ Another is “the court pagan”—apparently tribunals applying Roman law and its derivatives—and he cites both Tully and Grotius.Footnote ¹⁴⁶ In an earlier hearing of this case he had given the same civilian sources as evidence of “the law of equity through all the world,”Footnote ¹⁴⁷ and in Weaver v. Woodyear he again offers them as evidence of “natural right and common justice.”Footnote ¹⁴⁸

What this case illustrates, broadly, is that where Nottingham might have stated a specific rule consonant with the common law—that is, “if you want an unborn child to inherit, you have to say so”—he instead searches for a rule of universal equity, for which he finds evidence in extraneous sources, the limits of which are rather nebulous.Footnote ¹⁴⁹ The uncertainty of the potential range of sources, or perhaps of reasons, means that what even might count as a measure of what the law should be is in doubt. The “measure” is not necessarily the law immediately at hand. Rather, it may be “universal law.” But when that universal law is to be invoked, what constitutes evidence of it, and indeed what it is may be unclear.

The syndrome is aggravated by Nottingham's willingness not only to import “alien” legal elements but even nonlegal ones. While, therefore, he is ready to refer to ecclesiastical law for analogies or for evidence of what universal law might be, he goes beyond this, invoking simple religious considerations in some cases. Thus, in Grey v. Grey, a case involving the presumption of advancement, he says that “the reason why land does not lineally ascend is … from moral philosophy, quia amor descendit non ascendit, and from divinity.”Footnote ¹⁵⁰ Elsewhere, apparently, he elaborated, saying that the true reason was “from Moral Philosophy … and from the Law of Nature … and the Law of God,” citing for the last 2 Corinthians 12:14.Footnote ¹⁵¹ Divinity is a source of law. Similarly, in Clerk v. Perryer, a case concerning bailees' liability, he refers not only to civil law principles, but also says that the position he adopts is “grounded on the law of God”: “Jacob did make good to Laban all that was lost or stolen; and it is part of the judicial law that all men should do so, as appears by 22 Exodus, v. 11.”Footnote ¹⁵² It is no great wonder that Nottingham should display reverence for biblical authority but, again, this suggests a rather more porous and amorphous system of equity than some of his other dicta might suggest.

His willingness to import spiritual considerations appears in other ways as well. In the Prolegomena he makes the observation that a particular doctrine—that a mortgagor's debt “doth more nearly concern the executors than the heir”—“was anciently thought to concern the soul.”Footnote ¹⁵³ The word “anciently” suggests that he regards this kind of consideration a thing of the past. Nevertheless, in some of his own cases, he imports into his judgments what might be termed “concern for the soul.” For example, in Nurse v. Yerworth, observing that a doctrine that would make a testator unintentionally disinherit his own son is “contrary to piety,” he opines that it would make “a good Christian die worse than an infidel.”Footnote ¹⁵⁴ In Hickson v. Wytham, he holds that (at least in the absence of a specification to the contrary) a testator's debts should be paid before legacies because to do otherwise would be “to expound the testator's will so as to die in mortal sin,”Footnote ¹⁵⁵ adding “nemo praesumatur immemor aeternae salutis.”Footnote ¹⁵⁶ In yet another case he observes that although a litigant had the law on his side, yet he had no equity because to hold otherwise “were to visit the sin of the father on the child.”Footnote ¹⁵⁷ One of the measures that Nottingham applies, or one of the elements in the measure he applies, is “sin,” which has the potential to distort the parameters of “legal right,” not to mention of “strict law.”

Nottingham imports not only religious norms but also criteria taken from other aspects of the social order into his reasoning. Thus, I have already mentioned considerations of “courtesy,” noting for example his opposing the honorable conduct of one party to the other's insistence on “nicety” in denying the suit of the latter in equity. He defers to honor elsewhere as well. One of the things he regards as “fit to be considered” in Earl of Leicester v. Sidney is that, even though a particular rationale might not be “a legal and meritorious consideration in strictness of law,” nevertheless it is “a very just and honourable motive and inducement between families of … great quality.”Footnote ¹⁵⁸ Again, one might think that “strictness of law” would provide a more certain measure than “honourable inducement,” but Nottingham does not confine himself to the former. Similarly, he invokes honor in Shipton v. Lucy (the residue of an estate “ought in honour and conscience to be made as beneficial to [the plaintiff] as possible”)Footnote ¹⁵⁹ and in Bostock v. Ireton (“a retraction [of consent to a marriage] of the executors against the rules of honour and justice ought not to be penal to the married parties”).Footnote ¹⁶⁰

One discerns here a picture of a range of normative orders operating simultaneously: equity as defined by precedent, the common law, natural justice, universal law, civil law (at least as evidence of universal justice), ecclesiastical law, biblical law, the social code of honor, and perhaps others. Given one's impression of Nottingham as a systematizer, one might expect him to stick fairly closely to, say, the first two of these. But he does not—at least not consistently—so limit himself. The “system” he is ostensibly operating is one with quite permeable boundaries, through which might intrude a variety of kinds of “measures.”

Not only do we encounter these extrasystemic normative elements figuring in Nottingham's equitable reasoning but we also find more purely affective elements. Thus, on more than one occasion he observes, apparently as a relevant consideration, that a suit is “ungrateful.”Footnote ¹⁶¹ A party's failure to display appropriate gratitude might be a telling factor in equity. And, as we have seen before, although Nottingham on at least one occasion questions a precedent because it involved an argument of compassion (an extraneous consideration) as opposed to an argument of right (strictly legal), he does allow “pity” to affect his judgment at times.Footnote ¹⁶² Indeed, in Nurse v. Yerworth he specifically appeals to “that legal compassion due to all dying men who are inopes consilii—a compassion that will induce a court “to put words into the will which the testator never spake” in order to give effect to his apparent intent.Footnote ¹⁶³

The foregoing does not purport to be an exhaustive account of Nottingham's importation of extralegal factors into his equitable reasoning. Elsewhere, we find him invoking economic utility (he refuses to execute an agreement beyond a certain point “since it tended to the discouragement of all honest industry”Footnote ¹⁶⁴), cultural stereotypes (an executrix behaved “like a true stepmother,” he saysFootnote ¹⁶⁵), proverbial wisdom (“let him that … is a cold blow the fire”Footnote ¹⁶⁶), and concern for a dead man's reputation (he refuses to give effect to a power of appointment left to a widow because “whether the husband died like a wise man or a fool” cannot be left to depend upon his wife's exercise of discretion).Footnote ¹⁶⁷ No doubt others could be identified.

Although Nottingham does profess his allegiance to regular equity, it appears that the measure he ultimately applies is his own sense of right. In Lawrence v. Berney, for example, when asked to give effect to a decree of one of his predecessors, he declines, saying that if that decree appears to him to be “unjust or corrupt” he asks to be “excused from making it my act to build upon such ill foundations”: “For I will never charge my conscience with promoting an apparent injustice.”Footnote ¹⁶⁸ This attitude is nowhere more poignantly expressed than in Howard v. Duke of Norfolk where his opinion is contrary to that of the judges sitting with him and, as we have seen, may be inconsistent with precedent. “Upon the whole Matter,” he says, “I am under a Constraint, and under an Obligation which I cannot resist,”Footnote ¹⁶⁹ namely, “I must be saved by my own Faith, and must not decree against my own Conscience and Reason.”Footnote ¹⁷⁰ What in the end confines him is the imperative of his own conscience. This does not mean, of course, that his conscience will not frequently, or even usually, dictate that he shall do what he can to maintain the regularity of the law. Nor, however, does it mean that, where what his conscience requires does not accord with the strict or regular law, he will nevertheless stick to the latter.