Sixteenth-century English litigants and legal writers referred to a number of jurisdictions, chief among them the equity side of Chancery, as “courts of conscience.” By the eighteenth century, allusions to conscience had become rare and largely formulaic, displaced by references to its longtime partner equity. When and why did this transformation take place, and how did the meaning of conscience change over time? These and other long-debated questions lie at the heart of law professor Dennis Klinck’s detailed examination of conscience, equity, and Chancery. Like the fabled onion, Klinck’s erudite study peels back the layers of complexity of this bewitching subject only to reveal further layers of complexity and imprecision beneath, illustrating how difficult it is to pin down notions as ephemeral or slippery as conscience and equity. Continually frustrated that no chancellor (and few legal commentators) “has left a tract entitled anything like ‘The Meaning and Limits of Conscience as a Juristic Principle’” (157), he has provided his own, fleshing out sparse and often unsatisfactory legal treatments of the subject by turning to more developed examinations of conscience by political and religious writers and by making inferences based on published case reports.

Klinck’s forensic analysis of conscience and equity is difficult to summarize, as the quality of this work is to be found in the nuanced detail. However, it is possible to list some of his main arguments, if not his careful qualifications and counterexamples that prevent the drawing of definitive conclusions. Broadly speaking, Klinck emphasizes the extent to which late medieval and early sixteenth-century legal philosophers, chancellors, and litigants regarded conscience as a largely objective notion tied to (more or less) identifiable rules drawn from the laws of God, nature, and man. Reliance was not placed on the individual conscience of one person, whether the chancellor or a particular defendant, but on a more disembodied concept of universal morality. In other words, conscience was a matter of knowledge, not opinion. In substantive terms this required the revealing of universally understood norms of right and wrong and in evidentiary terms it entailed discovering the particular circumstances and motivations of individual litigants. In contrast to most legal historians, Klinck argues that this association of conscience with objectivity and a reliance on external rules persisted right through until the end of the seventeenth century. Even Lord Nottingham, the great reformer revered for administering “legal and regular equity” (270) made frequent appeals to an objective sense of conscience as the wellspring of equity and of Chancery’s equitable jurisdiction.

Nevertheless, a series of events and processes undermined and diluted the cherished objectivity of conscience, slowly but inevitably replacing it with more private and subjective formulations that focused increasingly on individual belief or opinion. Causes of this change included the rise of Protestant ideas that privileged individual conscience; a growing tendency to distinguish public from private conscience; political attacks on the arbitrary nature of justice administered by one chancellor (regardless of the size of his feet); procedural changes in Chancery, including a growing reliance on precedent; and developments in political thought led by Hobbes and Locke. The only obvious category to add to his list is changes to the common law itself.

Klinck brings to his subject the admirable precision of thought of a modern lawyer, but with it comes an unashamedly modern sensibility. He notes, for example, sixteenth-century cases of “conscientious religious objection” (77), gently chastises Christopher St. German for not finding slavery abhorrent, and quotes from a judgment by Sir Robert Megarry from 1979. His whole enterprise of definitively distinguishing “justiciable and non justiciable conscience” would have puzzled most sixteenth-century observers and, as Klinck himself admits on his final page, “perhaps it is impossible to formulate a definition of juristic conscience in terms of general criteria” (273). One role of conscience and equity was to correct the injustices that resulted from the rigidity of the common law. Making Chancery equally rigid, through sharply defined principles, would have been self-defeating, given that extraordinary cases are by definition hard to predict or to include in general categories. As Klinck reluctantly acknowledges, “arguably conscience in equity became simply the sum of the individual cases” (273). Given this conclusion, it is a shame that he decided at the outset to look only at Chancery and only at printed reports, especially now that decisions from Chancery and the Court of Requests are available online through the Anglo-American Legal Tradition Web site. Truly anomalous decisions, which in the mid-sixteenth century could resemble charity more than law or even equity, almost always went unreported.

In short, Klinck is an expert on the subject of legal understandings of conscience but not a specialist. When Barnabe Barnes refers to “his Maiesties Courtes of Chancery,” Klinck inserts a condescending “(sic)” after the plural, instead of expanding his own analysis to include the Durham and Lancashire Chanceries. Similarly, he appears incredulous at William West’s suggestion that it is the common people who refer to Chancery as the court of conscience, yet a quick glance at Chancery pleadings and decision books confirms that West was right. Despite this, Klinck’s book provides an admirable survey of the topography of conscience in early modern England and of the debates, conflicts, and intellectual dilemmas that it occasioned. It is a challenging book: as well as analyzing philosophical concepts such as synderesis, probabiliorism, and tutiorism, Klinck peppers his text with words such as “intellective,” “sedulous,” “lucubrations,” “dubiety,” “encomiastically,” “numinously,” “perspicuous,” “instantiation,” “contumely,” “sequelae,” and “ratiocination” and presents Latin, Law French, and Old English phrases without translations. However, diligent readers can learn much from his wide-ranging and penetrating analysis of shifting and alternative meanings of conscience in legal and religious texts and works of political and moral philosophy.