clean hands and maxims of equity and stephen trott and ninth circuit and michael row the boat ashore and wreathock

We have learned that the case of the Highwayman worked out pretty poorly for both Plaintiff and Defendant as well as Plaintiff's attorney. But more must be said about both. Then, I want to try to bring things up to the present.

The 1930 ABA Journal article, by the Hon. Willam Renwick Riddell of Ontario, leaves some gaps in the story. He stated that both the Plaintiff and Defendant in this robbery scheme (1725) were sentenced to death, while the attorney was fined and then, for a subsequent crime (1735), transported to America. But problems emerge with this account. John Everet (the plaintiff) was not actually executed until 1780 and the Joseph Williams, the defendant, was executed in 1776. If the crime for which they were hanged was the crime described above, it seems strange that they would have been hanged 50 or so more years after the crime.

Perhaps, you say, the crime for which they were hung was not a capital offense in 1725, knowing as we do that as the 18th century wore on that the number of capital crimes increased dramatically in English law. But, that can't be the case, because you would have an ex post facto problem. Thus, I remain a bit confused by the execution of the criminals (or men of the same name) more than 50 years after their crimes. I really do not know whether they were hanged for the offenses committed in 1725. Maybe the enforcement of capital punishment in these two cases was like the Oregon Supreme Court's death penalty jurisprudence in the 1980s and 1990s--remand after remand with no execution in sight. In any case, I can go no further with the parties.

Closing the Books on Wreathock

Apparently sometime after he was "transported" to America, our problem-overwhelmed Solicitor was back in England, getting into trouble again. He found a way to be committed to Fleet Prison for contempt of the Lord Chancellor in 1756. The reason we know about this is that The Records of the Society of Gentlemen Practitioners (London, 1897) contains minutes of meetings of said society back to the 18th century. In their minutes for 1757 and 1758 they deal with the problem of whether to expel Mr. Wreathock from their membership. There really is no question that he would be expelled; they just had to get their equivalent of a certified copy of the 1735 Record of Conviction. Riddell makes references to the humorous asides in the minutes--for example, where it was impossible for two "Christian men," meeting as a sort of subcommittee to gather the document, "to separate without having something to drink," and thus the minutes talk about "one bottle of Port between the Secretary and the committee-man" which hit the spot. Riddell's treatment of exactly what happened is rather mangled; suffice it to say that it appears that Wreathock somehow got back into the Bar after return from America. He may, indeed, have returned to his practice after the Gentleman got rid of him in 1758. Persistence. Isn't that what they teach you in law school?

Fast Forward to 2004

So, Judge Stephen Trott, a distinguished jurist of the 9th Circuit, who has served since President Ronald Reagan appointed him in 1988, is taking senior status. What does that have to do with anything? Well, Judge Trott, who hails from New Jersey, was a student at Wesleyan University in Middletown, CT in the late 1950s and early 1960s and formed a music group with four of his fellow students: Bob Burnet, Steve Butts, Chan Daniels and Steve Fisher. Daniels has died, but the other four, like the Christy Minstrels and many other groups, have done some limited performances in the last few years. For example, I will never forget a concert I attended in Vancouver, WA on September 12, 2003, when Randy Sparks brought together a few members of the old "New Christy Minstrels" for a night of entertainment. Barry Maguire's haunting rendition of "Eve of Destruction" from that night will stay with me forever.

Trott played a mean banjo and guitar, even though he immediately went on to Harvard Law School after finishing Wesleyan. Oh, the name of Trott's group? The Highwaymen. I don't have to say much about the fame of the Highwaymen (Trott's Highwaymen, I mean). Their 1961 hit song "Michael Row the Boat Ashore," is still hummed by 50 and 60-somethings and their 1962 follow up hit "Cottonfields" was almost as famous.

Now, I Understand

Ah, so here is how it probably happened. Since Trott was precocious, he probably, even before law school, had heard of the shadowy story of the Highwayman narrated in the previous essays. Knowing that this story had spawned one of the famous principles of Equity, "he who comes into equity must come with clean hands," and wanting to do mind-play with his budding understanding of equity and the attractiveness of the Highwayman case, while still playing his banjo and guitar, he thought that the name Highwaymen might be an appropriate way to do so. Hence, the name of the group emerged. Others may deny it, I am sure, but this sounds like as good an explanation as any other.

Conclusion

Thus, we reach the end of the line. The article in Corpus Juris Secundum says: "Although not the source of any distinctivce doctrine, it (clean hands) furnishes a most important and universal rule affecting the entire administration of equity jurisprudence as a system of remedies and remedial rights (vol. 30A, p. 305)." It is one of the ironies of law and life that some of the most nefarious conduct becomes the basis for the development of the most useful principles.

Thus, before resuming our busy lives, let's give thanks for Mr. Everet and Mr. Williams, and their compliant attorney, Mr. Wreathock, who had the gall to argue that the profits of a joint-venture in robbing people ought to be divided equally by a Court of Equity. Even though the "doctrine" flowing from this Maxim has all kinds of labyrinthine twists and turns, amply documented in the Corpus article, I think it is enough for us to know about the case of The Highwayman. If we know only that, we will never forget the "clean hands" Maxim of Equity.