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from study of the cases.1 In the case of Francis' first maxim, and in some other cases, we can see where he got his idea and even where he got the language in which he put it.
Francis gives nine examples under his first maxim, citing many cases under each. No such maxim is referred to in any of them, nor in other cases prior to 1728 in which the doctrine or policy expressed by the maxim was applied.2 But an examination of his citations reveals where he got his words and how his maxims got currency. The last case cited under his first example is Windham v. Jennings.3 There is no mention of the maxim in the report of this case in the first edition (1694). But in the third edition (1736) at the end of the report there is added: "He that will have equity must do equity," followed by the citation, "Max. Eq. fo. 1." This last is a reference to Francis, and means that the editor saw in the case, as Francis had done, an illustration of the principle of the maxim. But it is made to read as if it were a part of the report of what the court had said in the seventeenth century. Story does not cite this report. The first case cited by Francis under his second example has also something to tell us. Here we read that Sir Harbottle Grimstone, M.R., made a decree upon this rule, He that will have equity to help where the law can not, shall do equity to the same party against whom he seeks to be relieved in equity." Francis' first maxim is palpably an editing of this statement.
1 Compare the statement on the title page of Grounds and Rudiments that the cases cited "evince" that the principles and maxims are those upon which decisions have proceeded. Story's language (§ 63) is even more suggestive: "Maxims and rules of a general nature which are of constant and tacit and sometimes of express reference." (Italics mine.) E.g. Margrave v. Le Hooke, 2 Vern. 207 (1690); Pope v. Onslow, 2 Vern. 285 (1692).
3 2 Rep. Ch. 247.
St. John v. Holford, 1 Cas. Ch. 97 (1668).
How little idea there was of any maxim to this effect, prior to Francis' book, is shown by Taylor v. Beversham,1 which Francis cites. No maxim is mentioned.
But the doctrine of the maxim is put by counsel arguendo as a "rebutter in equity" to the plaintiff's demand, and the reporter's note (1701) designates the case as one of "rebutter of equity."
II. "He that hath committed iniquity shall not have equity." In Grounds and Rudiments (1749) this reads: "He who hath done iniquity shall not have equity." Fonblanque3 says: "If such a fraudulent person come as a plaintiff into a court of equity to have what is really and bona fide lent, he shall not have it because he has committed iniquity." For this proposition he cites Rich v. Sydenham.4 That case makes no mention of any maxim and uses no such language. But it is No. 4 in the list of cases by which Francis supports his second maxim. In other words the language and the citation come from Francis.
Nowadays the maxim is put quite differently, namely, that "He who comes into equity must come with clean hands."5 This form seems to begin in a remark of Lord Chief Baron Eyre in Dering v. Earl of Winchilsea (1787)6: "It is not laying down any principle to say that his ill conduct disables him from having any relief in this court. can be founded on any principle, it must be that a man must come into a court of equity with clean hands; but when this is said it does not mean a general depravity; it must have an immediate and
1 2 Cas, Ch. 194.
2 Grounds and Rudiments of Law and Equity, maxim 174. 3 Bk. I. Ch. 2, § 13 (1793).
4 I Cas. Ch. 202.
• Snell, Principles of Equity, Chap. 2; Bispham, Principles of Equity, § 42; 1 Pomeroy, Equity of Jurisprudence, § 363; Ashburner, Principles
of Equity, Chap. 27.
6 I Cox Eq., 318, 319.
necessary relation to the equity sued for." Later in Cadman v. Horner1 Sir William Grant, M.R., said: "As upon the evidence plaintiff has been guilty of a degree of misrepresentation, operating to a certain, though a small, extent, that misrepresentation disqualifies him from calling for the aid of a court of equity, where he must come, as it is said, with clean hands." This sounds like an old saw of the court. But before Dering v. Earl of Winchilsea the books put the doctrine in the wholly different form in which we find it in Francis' Maxinis in 1728.
Francis cites nine cases for his maxim. There is no mention of such a maxim, nor of anything like it, in any of them. But in Bodley's Case2 the reporter (1701) puts in the margin, as a head note, Iniquity takes away equity." In the days of marginal notes a short "snappy snappy" phrase was as dear to a law reporter as it is to a newspaper headline written to-day. It was "arresting" and it took up a minimum of space. Spence has shown how far back the policy expressed by this maxim may be traced in the exercise of the court's jurisdiction, and how slowly there came to be a principle with defined limits. The maxim does not seem to be older than the eighteenth century, and in its usual form it speaks from the end of that century.
III. "Equality is equity." This maxim has been stated ever since as it was put by Francis.5 Of the twenty-one cases which Francis vouches, none mentions any maxim. But one of them suggests where he got the hint for formulating as he did an obvious
1 18 Ves. 10, II.
22 Cas. Ch. 15.
In Grounds and Rudiments this appears as maxim No. 146: "Iniquity bars equity." But in maxim No. 134 we had already been told that "he who hath done iniquity shall not have equity.'
41 History of the Equitable Jurisdiction of the Court of Chancery, 423-424 (1846).
5 Grounds and Rudiments, maxim 91; 1 Story, Equity Jurisprudence, §64 f.; Bispham, Principles of Equity, § 42; 1 Pomeroy, Equity Jurisprudence, § 363.
principle of justice and well known policy of the court. In Hixon v. Wytham, Lord Keeper Finch said: "A debt without specialty is as much a debt jure naturali and in conscience as a debt by specialty, and therefore there shall be an equality with debts by specialty where conscience is the judge." Francis prints the last clause in italics and alters it to read as a general proposition: "There shall be equality where conscience is the judge."
On the other hand several of Francis' cases show that there was then no current maxim. In Noel v. Robinson (1682), an obvious case for the maxim, it is said that "the common justice of the court requires the decree. Had there been a current proverbial way of putting this, it could hardly have escaped both court and reporter. So also in Vintner v. Pix (1670), the court said it was "equitable and just that the executor ought to have carved equally and given each one his rateable part." The way in which the court puts the matter indicates that no maxim was then in use. The first statement of what might be taken for a maxim of equity seems to have been made by Lord Somers in Petit v. Smith (1696)a: "And it was said by Lord Somers that equity did delight in equality, and that the distribution according to the statute was most agreeable to natural justice. At the date of Francis' Maxims of Equity, Peere Williams' Reports had not been published. Otherwise Lord Somers might have formulated the maxim for us.
In a sense the maxim goes back to the Nicomachean Ethics: "But the just is something equal and the unjust something unequal." In Grounds and Rudiments the author cites Bracton: "et dicitur aequitas
1 I Cas. Ch. 248 (1675).
2 I Vern. 90, 94. 3 1 Rep. Ch. 133. 5 Vol. 1, 1740. See also Bk. 4, Ch. 5, § 3.
This seems to come from Aristotle by way of the schoolmen theologian philosophers. It is not in the canon-law or civil-law collections of maxims. Also the author cites the argument of Serjeant Hardres in Vere v. Sampson (1655)2: “And the law of equality and proportion is the most equal and just law and most consonant to reason. Had there been a current maxim, he would hardly have failed to use it here.3
IV, V. The next two maxims in Francis' list may be disposed of in a few words. They are: IV. "It is equity that should have satisfaction which received the benefit"; V. "It is equity that should have satisfaction which sustained the loss." These propositions come from the Digest by way of the Sext.1 They are not to be found in collections of the maxims of equity since the much padded Grounds and Rudiments of Law and Equity.5
VI. "Equity suffers not a right to be without a remedy." Obviously this is but an equitable version of ubi jus ibi remedium. It bears the earmark of relatively late formulation in the use of "A right" for "right." At least down to the seventeenth century, it would have been "right" that was not to be without a remedy. Moreover the saying that no one should leave chancery without having obtained a remedy was a common-law proposition, referring to the common-law writs. The pedigree of Francis'
1 Bract. Bk. 1, Ch. 3.
2 Hardres, 205, 209.
3 In Ballow, Treatise of Equity, pt. 1, Ch. 1, § 1 (1737), what is said about the nature of equity is taken almost wholly from the Nicomachean Ethics. After setting forth Aristotle's doctrine of equality, the author adds: "And this is the golden rule of equality that God himself observes." 4 Digest, 50, 17, 10; Sext. De regulis iuris, reg. 55.
5 This curious book gives us 526 maxims in all, of which 71 might be classified as maxims of equity. But I cannot pretend to know how to classify No. 150 (felix qui potuit rerum cognoscere causas) nor No. 181 (humanum est errare).
"The rule of nullus recedat a cancellaria sine remedio was never meant of English procedure [i.e. by English bill in the equitable jurisdiction], but only of original writs when the case would bear one." Lord Keeper Finch in Cook v. Fountain, 3 Swanst. 585, 600 (1676).