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But we trust that sufficient evidence has been adduced to show that the study of Roman Law is also of great value, even at the present day, in the actualities of practice in the English Courts.
In the reign of Henry V., the neglect of legal study in Cambridge led to the issue (in the year 1415) of an ordinance, addressed to the bachelors and other scholars iuris canonici et civilis, charging them to attend the lectures and to pay the fees of the professors and bedells. Such a disciplinary regulation would be impossible, and, it is to be hoped, unnecessary at the present day; but we may also express a hope that the latter part of the injunction contained in the ordinance will be punctually observed.
1 E. C. Clark, Cambridge Legal Studies, p. 50.
On Certain Maxims of Equity
BY ROSCOE POUND, Ph.D., LL.D.;
DEAN OF THE LAW SCHOOL OF HARVARD UNIVERSITY; CARTER PROFESSOR OF JURISPRUDENCE IN HARVARD UNIVERSITY.
IN text books on equity and equity decisions of a century ago the "maxims of equity" are much in evidence. They have ceased to play any great part in the English reports and are now to be found chiefly in students' books. In the United States, on the contrary, they are constantly quoted in judicial opinions, and text books on equity still expound them in detail.1 These maxims are of two sorts. They are, or they purport to be, traditional proverbial ways of putting, on the one hand, certain results of equitable doctrines, and, on the other hand, certain policies of the courts in the exercise of equity jurisdiction. How old is this tradition? How and by whom were these results of doctrines and their policies formulated as maxims? When did the maxims come to be recognized?
At least the immediate point of origin is Francis' Maxims of Equity.2 Francis gives a list of fourteen maxims of which, however, not more than half are to be found in the books to-day. Indeed only four appear substantially as they are known to-day. Those which have survived, or have been developed in more recent expositions, are statements of policies
1 Compare Vol. 13 Laws of England (Halsbury), 65-87, on "principles affecting relief in equity," mentioning at most eight maxims, with the elaborate treatment of fourteen maxims in 21 Corpus Juris, 172-209 (the current American cyclopedia of law).
2 Maxims of Equity, Collected from and proved by Cases, out of the Books of the best Authority, in the High Court of Chancery. By Richard Francis, of the Middle Temple, Esq. 1728. Second edition, 1739; third edition, 1751; fourth edition, no date. There was an American edition by Hening in 1823, afterward incorporated in Hening, Maxims in Law and Equity, 1824; new edition, 1845.
or doctrines as to the exercise of equity jurisdiction. They are: I. "He that will have equity done to him must do it to the same person"; II. “He that hath committed iniquity shall not have equity"; III. "Equality is equity"; VI. "Equity suffers not a right to be without a remedy"; XII. “Equity suffers not advantage to be taken of a penalty or forfeiture, where compensation can be made"; XIV. "Where equity is equal, the law must prevail." Of the seven of Francis' maxims which have survived, not more than four, namely numbers II, III, VI, and VII, are well formulated in the oracular proverbial form of a maxim, and only three have as yet attained the form in which they are commonly put to-day. The remaining seven of Francis' list of fourteen, are of two sorts. Some of them attempt to state received heads of equity jurisdiction; e.g., No. VII. “Equity relieves against accidents," VIII. “Equity prevents mischief," IX. "Equity prevents multiplicity of suits." The others seek to state supposed doctrines of equity; e.g. IV. "It is equity that should make satisfaction which received the benefit," V. "It is equity that should have satisfaction which sustained the loss," XI. "Equity will not suffer a double satisfaction to be taken." These seven, which have not maintained themselves, throw some light on the origin of the whole list.
Let us look at Francis' maxims in detail.
I. "He that will have equity done to him must do it to the same person." In Grounds and Rudiments of Law1 it is maxim number 179, and reads:
1 Grounds and Rudiments of Law and Equity alphabetically Digested. Containing a Collection of Rules or Maxims, with the Doctrine upon them, illustrated by various Cases extracted from the Books and Records, to evince that these Principles have been the Foundation upon which the Judges and Sages of the Law have built their solemn Resolutions and Determinations. By a Gentleman of the Middle Temple, 1749. Second edition, 1751.
"He who will have equity must do it."" In Comyns' Digest (1762) it appears as: "A man who will not do equity shall not have relief in equity." In Story's Equity Jurisprudence (1836) it has a new form: "He who seeks equity must do equity.' This form has been maintained ever since.4
It will be seen that the proverbial form finally acquired by this maxim is the result of a gradual process of shaping the somewhat crude statement in Francis' Maxims. It is evident that Francis did not give us an old saw of the Court of Chancery. He attempted to formulate a well-settled doctrine or policy as to the exercise of equity jurisdiction, and a succession of writers polished his maxim into its present shape. This is indicated also by the numerous old cases in which the chancellors talked about "maxims," in cases now cited for particular modern formulas, without suggesting that there was any applicable" maxim of equity." Indeed, although Francis purports to collect his maxims from the books, it is clear that his model was Bacon's Maxims. Like Bacon's, his maxims for the most part are independent attempts to state principles derived
1 This seems to have been suggested by the editor's addition to the report of Windham v. Jennings in the third edition of Reports in Chancery (Vol. 2, p. 247), 1736.
2 Com. Dig. Chancery, 3 F. 3.
1 Story, Equity Jurisprudence, p. 77, now § 643. In the first edition (and subsequent editions) there is under this maxim a citation of "McDonald v. Neilson, 2 Cowp. R. 139." This seems to refer to McDonald v. Neilson, 2 Cowen (N.Y.) 139 (1823), where, on p. 150, counsel says arguendo: "He who comes to ask equity must do equity,' using that phrase, however, in a different sense to mean, as we now say, that he must come with clean hands." The phrasing is perhaps taken from a remark of Lord Eldon in Davis v. Duke of Marlborough, 2 Swanst. 108, 157: "The principle of this court is not to give relief to those who will not do equity."
Snell, Principles of Equity, 1 ed., p. 12 (1868); Bispham, Principles of Equity, § 43 (1874); 1 Pomeroy, Equity Jurisprudence, § 363 (1881).
E.g. Bassett v. Nosworthy, Cas. Temp. Finch, 102.