Maxims of equity and the highway man and clean hands and lord kenyon and book of proverbs and learning

I have always been particularly partial to proverbs. The ability to sum up or capture a truth about life with a few well-chosen words is a rare one. Thus, it was probably not unusual that I began to memorize the biblical Book of Proverbs in earnest when I was 19. Each day I would try to learn several lines, repeating them as I walked around the Brown University campus or while I was at my grandparent's home in Old Greenwich, CT on vacations. Unfortunately, I only got to memorize the first nine chapters of Proverbs, which consists of more lengthy hymn-like poems to wisdom rather than the pithy, gnomic, sententious utterances which we normally think of when we just can't get the concept of the Book of Proverbs out of our mind.

I told a friend at Brown that I was memorizing Proverbs and he laughed at me. "You can't do that!" he said. First, he told me, it was impossible to memorize that much material. And, second, he told me that while I was wasting my time doing it, I could have been reading thousands of pages of other important books and really learning something. Shamed by his vehemence, and wanting to be the deferential Christian I thought I should be, I quit memorizing. Upon reflecting on this experience many times in subsequent years, it has become clear to me that I stand for almost everything that modern learning is against: memorization of poetry, study of historically-obscure stuff, patient mastery of ancient languages, mythologies, memorization of texts and dates, rhetoric, integration of learning with feelings, interdisciplinary study, daily writing and posting of learning. Oh, I can do all the things that modern academics think you should do--with my left hand while balancing on one toe. But, I don't want to learn as the academy learns.

Another Kind of Proverb

So, I was delighted to discover, when I turned to law in 1996, the concept of Equity and, within it, the notion of "Maxims of Equity" (See Billphorism 87)--the legal profession's attempt to articulate some proverbs. I learned quickly, however, that although the concept of an Equity Court existed for hundreds of years in the common law of England, and the notion of Equity continued in America as a separate mode of judicial analysis until the 1938 merger of law and equity in the Federal Rules of Civil Procedure (even though equity continues in a separate court system or separate mode of analysis in at least four states), no one knew anything about it at my law school. Or, better said, it was something that one would mention only as an historical aside when dealing with remedies or civil procedure ("yeah, the injunction is a relic of equity"; "specific performance is an equitable remedy"; etc). No one seemed curious about this world, and no one tried to explain it.

I think the reason for this is that it is just too difficult to do so and it doesn't immediately relate to issues of practical life today. That is, in order to understand equity and its maxims, you would need to really understand why equity emerged and in what forms it expressed itself over the years. Everyone knows that it emerged because of a dissatisfaction with the common law's narrow focus on "Forms of Action," but no one can go much beyond that statement. Just as it would take a lot of work to discover Jeremy Bentham's real reasons for his view of the oppressiveness of the common law system or the reasons for the early 20th century American ritual jurisprudential trashing of conceptualism, it would take a lot of work to try to understand equity's origin, form, precedents, cases and place in the common law system.

Arriving at the Maxim

So, in this and the next two mini-essays, I will only scratch the surface on one maxim in one small topic of the huge area of Equity. Because Equity, in general, was not precedent-based, as in the legal system, it had to develop "working rules" for its decisions. These "working rules" tended to coalesce into about a dozen or so "Maxims" in the 17th and 18th centuries. There was no authoritative list of the Maxims of Equity, but when treatises on Equity jurisprudence began to emerge in the 18th and 19th centuries, scholars would devote a section of their book to the "Maxims of Equity." For example, George Bispham's treatise on the Principles of Equity, first published in 1874 and going through 11 editions by 1931, lists and discusses 12 Maxims of Equity in 25 pages. The multi-volume legal encyclopedia, Corpus Juris Secundum devotes more than 60 pages to the Maxims, though most of those 60 pages consist of citations of cases where a particular maxim is mentioned. The Corpus lists a few more than 12 Maxims, though you could count them in different ways. I wonder if in some ways the number 12 was chosen because of the number's significance in Western religious history. It seems more "authoritative" to say there are 12 Maxims of Equity than 19 or 23 of them.

Getting to the Point--Finally

I will close this essay by reference to the text and footnote that stimulated these three essays in the first place. In discussing one of the maxims, "He who comes into Equity must do so with clean hands," [Ok, the fancy Latin designation is, "ex turpi causa non oritur actio--"no action arises out of an illegal transaction], Bispham says, enigmatically with no footnote, "About the earliest illustration of this doctrine is almost traditional in the famous case of The Highwayman." He goes on to say,

"Lord Kenyon once said, by way of illustration, that he would not sit to take an account between two robbers on Hounslow Heath, and it has been questioned whether the legend in regard to the highway-man did not arise from that saying. It seems, however, that the case was a real one. The highwayman did file a bill in equity for an accounting against his partner; and, moreover, the plaintiff's sollicitors were summarily dealt with by the court as for a contempt in bringing such a case before it (Bispham, 8th Ed, p.65)."

Conclusion--for Now

Since no one reads Bispham and even those who might happen to run across this passage by accident would breeze through this strange citation, there is no reason to dwell on it. Except, that it is is a roaringly funny case, which the next essay will describe.

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