The Law's Conscience

Equitable Constitutionalism in America

Peter Charles Hoffer

• Publisher: The University of North Carolina Press
• Year: 2000
• Print ISBN: 9780807842942, 9780807819197
• eBook ISBN: 9780807862063
• Topic: Law
• Subtopic: Early American History
• Index: Law

The Law’s Conscience is a history of equity in Anglo-American juris-prudence from the inception of the chancellor’s court in medieval England to the recent civil rights and affirmative action decisions of the United States Supreme Court. Peter Hoffer argues that equity embodies a way of looking at law, including constitutions, based on ideas of mutual fairness, public trusteeship, and equal protection. His central theme is the tension between the ideal of equity and the actual availability of equitable remedies.

Hoffer examines this tension in the trusteeship constitutionalism of John Locke and Thomas Jefferson; the incorporation of equity in the first American constitutions; the antebellum controversy over slavery; the fortunes of the Freedmen’s Bureau after the Civil War; the emergence of the doctrine of “Balance of Equity” in twentieth-century public-interest law; and the desegregation and reverse discrimination cases of the past thirty-five years. Brown v. Board of Education (1954) was the most important equity suit in American history, and Hoffer begins and ends his book with a new interpretation of its lessons.

1. WHAT IS EQUITY?

When Chief Justice Earl Warren invoked “equitable principles,” his professional readers presumed he meant the black-letter rules for granting injunctions. These were outlined in the Federal Rules of Civil Procedure and detailed in the rules of practice in each of the judicial circuits, but Warren meant his opinion to touch the heart of the average American. To the ordinary citizen, Warren implied that equity was an approach to law, including constitutional law, based on doing justice for all concerned. He conveyed his sense that ideal equity is fairness, giving all their due. Such fairness is expansive and realistic, adjusting disputes and redressing hardships so all parties can live with each other; it does not end with barren recitals of impersonal rights but addresses real harms; it is mutual, multilateral, and reflexive, making the world whole again.

THE TWO EQUITIES

Imagine for a moment an ideal court whose magistrate is charged with such fair dealing. Let us call him a chancellor. He demands that parties litigating in the court act toward each other, and toward the court, with good faith—revealing the truth, making efforts to find some middle ground, and obeying the dictates of conscience (if not their own, then the magistrate’s). The chancellor’s insistence on good faith rests on his power to compel obedience from the parties, a jurisdiction over their persons. The parties may rely on his good conscience to act in the best interests of them all. He trusts them to carry out his decree; they trust him to order a fair solution to their dispute. There is no jury in his court to act as intermediary, finding facts or insisting on their vision of the law; his fairness requires mutual trust.

This chancellor has to regard all parties before him as equals and formally or informally redresses inequality in the legal capacities, the representation, and the adequacy of pleading of the parties. Again, in a larger sense, our imaginary court, under its first principles of fairness, treats the parties’ claims equally. The poor farmer’s or mill worker’s land and labor are not subordinated to the great planter’s or the manufacturer’s will. Our chancellor protects the weak against the strong in the courtroom. Fairness elevates individual equality into a communal goal.

Above all, fairness in this court embraces a flexible and humane realism. The chancellor peers behind the formalities to seek the real extent of harm. He tries to induce parties to settle their differences, intruding himself and his appointees into the process, if necessary on a continuing basis, to oversee the settlement. His decree brings the parties back before him, and he retains jurisdiction over the suit until its resolution satisfies him.

Here doubt plucks at the prudent scholar’s sleeve and warns against re-creating a Camelot inhabited by good chancellors and their courts. Nevertheless, something approaching this reverie, under the rubric of epieikeia—equity, has long been a dream of Western jurists. Indeed, when one thinks of equity, one does not first think of chancellors and their courts, but recaptures instead a philosophical ideal coeval with Western civilization. Its most famous and long-lived expression appears in Aristotle’s Nichomachean Ethics. Equity offered a remedy where the law did injustice. “The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement.”¹ In equity, the spirit of the law, the lawgiver’s intention, is extended to cover a case not comprehended in the generality of the statute. Equity embodies the highest justice because it is flexible and gives priority to the actual situation of the petitioners.²

Two corollaries to Aristotle’s theorem framed the later development of the idea of equity.³ First, Aristotle derived equity from an analysis of remedy. His argument presumed a breakdown of law but did not focus on that breakdown. He gave no guide to the perplexed judge, only the instruction that where the law did an injustice through failing to provide a remedy where it should have, equity might enter. The second characteristic of Aristotle’s formulation is that equity worked in the interstices of law. If the law gave a full remedy, there was no need for equity. If equity was a requirement of any legal system (for the laws could never be comprehensive enough to do justice in all cases), it only applied to particular cases of injustice (though these might involve a multitude of petitioners for redress). The theory of equity was universal, but the practice of equity confined itself to individual cases.

Roman jurisprudence accepted and extended this essential duality of universal justice and practical, individualized remedy at the heart of equity. Among the Romans, good faith and full disclosure were essential parts of any legal sale or contract for land. Cicero went further: “The civil law derived from nature condemns malice and deceit not only in the case of real estate transactions, of course. In the marketing of slaves, too, it forbids any fraud on the seller’s part. The aediles [magistrates of the city of Rome] have decreed in their edict that sellers who are aware of a poor state of health, of a tendency to escape, or a record of theft have to report these traits.”⁴ As Romans found themselves dealing with foreigners, commercial transactions required constant equitable adjustment. There could be no ius gentium, a law for all the peoples in the empire, without aequitas. The rules of equity were firmed in the schools of the “jurisconsults,” paid legal advisers, in the second century of the common era and made their way to the far reaches of the empire. This duality was an uneasy one. If the magistrates had discretion to adjust law to the expectations and claims of the petitioners, what control was there upon the lawgiver? Where could one look to know the rules? In Justinian’s codification of the Roman law, philosophical generality again bowed to institutional rigidity; natural law became rule-bound.⁵

Both Aristotle and Cicero regarded remedial justice as external to custom and convention. Cicero in particular believed that equity derived its force from nature, “the source of law.”⁶ That refrain would periodically appear in legal texts thereafter. Medieval canonists, church lawyers, and lay professors of Roman law also associated equity with natural law. They then extended equity from private commercial dealings to embrace the proper relationship between rulers and peoples.⁷ A short step forward enabled early modern exponents of natural law to find in equity a model for relations between nations. Grotius, for example, identified equity with both fair dealing and equal treatment in war and peace.⁸ In trying to fuse Aristotle’s two equities, Grotius produced a set of absolute rules, much like the Institutes. Such rules were at once inevitable and yet contrary to the individuation of Aristotelian equity.

Early modern English jurisprudents juggled the universal and the mundane in equity. Christopher St. German’s Doctor and Student (1523-32) declared that equity “is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof,” while at the same time equity comprised those remedies available from the English chancellor and nothing more.⁹ Edward Hake’s Epieikeia (1603) described equity as a “correction” built into every law, which, when expanded, meant that all law ought to be equitable, but that the equity “of the judge” was confined to particular cases under well-understood rules.¹⁰ The bifurcation of equity was built into its very structure, according to Scotland’s eighteenth-century jurist Henry Home, Lord Kames. A century and a half after Hake, Kames sounded the same two-part harmony of ideal justice and earthbound relief: “equity, in its proper sense, comprehends every matter of law that by the common law is left without remedy; and supposing the boundaries of the common law to be ascertained, there can no longer remain any difficulty about the powers of a court of equity. But as these boundaries are not ascertained by any natural rule, the jurisdiction of the common law must depend in a great measure upon accident and arbitrary practice; and, accordingly, the boundaries of common law and equity, vary in different countries, and at different times in the same country.”¹¹ Kames’s equity began with a commitment to natural law and ended with practical concession. His equity did not define itself but was a byproduct of the indefiniteness of common law. If the latter was inevitable, it made equity a perpetual wanderer on the outer edge of settled law. Kames knew that no judge or chancellor would want to be a nomad on the rim of the legal world and devoted the rest of his treatise to rules for the equitable adjudication of specific cases.

Both aspiration and actual redress found expression in equity courts. It was for practicing solicitors and chancellors that Hake and Kames wrote. The most often cited summary for the rules of equity in these courts was Richard Francis’s Maxims of Equity (1726). There was nothing brilliant about his short collection of cases; he was popular because he brought together the conventional wisdom of his day.¹² There were fourteen maxims, and all echoed the duality of equity—natural justice captioned as mechanical rules:

1. He that will have equity done to him, must do it to the same person; 2. he that hath committed inequity, shall not have equity; 3. equality is equity; 4. it is equity that should make satisfaction, [he] who received the benefit; 5. it is equity that should have satisfaction, [he] who sustained the loss; 6. equity suffers not a right to be without a remedy; 7. equity relieves against accidents; 8. equity prevents mischief; 9. equity prevents multiplicity of suits; 10. equity regards length of time; 11. equity will not suffer a double satisfaction to be taken; 12. equity suffers not advantage to be taken of a penalty or forfeiture, where compensations can be made; 13. equity regards not the circumstance, but the substance of the act; and 14. where the equity is equal, the law must prevail.¹³

These maxims, apparently reaching up to a higher sphere of human justice, were in reality chapter headings for densely packed epitomes from equity reports. Much of their substance, obscured for modern readers by their cryptic formulation, is part of equity today. For example, maxim number three merely means that the court will divide an estate equally if there are no other considerations dictating its apportionment. Maxim numbers four and five together are the doctrine of restitution, preventing unjust enrichment. Maxim number seven has nothing to do with automobile crashes; it provides that a contract accidentally misdrawn may be reformed or rescinded. Maxim number eight prevents a litigant or a trustee in a pending suit from wasting the assets of an estate. Maxim number nine allows the equity court to join together suits arising out of the same transactions, or suits against the same defendant by many petitioners, or different suits between the same petitioner and defendant. Maxim number ten warns petitioners not to sleep on their rights; they must petition the chancellor within a reasonable time. Maxim number twelve refers to the defaulting mortgagor’s or debtor’s right to pay the past due installments, interest, and court costs and thereby prevent foreclosure on the mortgage or penalty bond attached to the debt. These technical matters were familiar then and remain so to lawyers.

By the end of the eighteenth century, England’s chancellors reasoned much the same way as its common-law judges. Analogy, precedent, and rule had largely replaced case-by-case flexibility. Francis’s maxims of equity were categories, not abstract principles, mirroring the self-imposed restraint of contemporary chancellors. Nevertheless, William Blackstone, a conservative jurist whose influence on the interpretation of common law, statute, and equity was felt throughout the English-speaking world, recognized that the duality—the periodic recrudescence of higher principles of natural obligations—inherent in equity still rendered it a loose cannon on the ship of state. In his Vinerian lectures on the law, later published as Commentaries on the Law of England (1765-69), he insisted that equity was purely auxiliary to law. Narrowly reading Aristotle and emphasizing the technical side of English and Scottish equity treatises, he defined equity as “correction of that, wherein the law (by reason of it’s universality) is deficient.”¹⁴ For Blackstone, there was but one equity, and it had nothing to do with universal principles of conscience or fairness. It merely was a set of rules, as Frederic William Maitland later put it, once used by chancellors in their courts.¹⁵

Much influenced by contemporary English jurisprudence, Joseph Story, the foremost equity commentator in the first century of the American republic, conceded that there were two equities. The first was marked by great discretion, based on the canon-law backgrounds of the first English chancellors, but Story found it suited only an infantile era of law and was wholly supplanted in his time by a controlled, constrained science of equity, ancillary to common law.¹⁶ A similar view prevailed throughout the later years of the nineteenth century and has many exponents in law schools and on the bench today.¹⁷ Story and his successors recognized that equity must be flexible but denied that the chancellor introduced new remedies. In favor of Story’s analysis one must concede that by his own day equity had its own reporters, precedents, rules, and limitations. Indeed, early in its career, the United States Supreme Court attempted to limit the reach of federal equity to only those causes in which English chancellors had already used their powers.¹⁸

THE TOOL KIT OF THE CHANCELLOR

Blackstone and Story may have had political reasons for trying to curb the discretion of chancellors, but they quite sensibly balked at the prospect of different chancellors issuing widely disparate decrees in similar cases. Like Justinian and Grotius, Blackstone and Story demanded an equity on which suitors could rely. By the time Story published the first volume of his Commentaries on Equity Jurisprudence in 1836, precedents for chancellors were well developed. Though they changed much in the next 150 years, the outlines of modern equity can be traced back through Story and Blackstone to the first chancellors.

In the traditional formulation of his authority, the chancellor’s jurisprudence followed his “conscience.” That doctrine was built upon his power to compel the consciences of defendants. Without a court of equity in which the chancellor wielded his subpoena (literally “under power of”) to compel defendants to come before him and answer his inquiries, the idea of equity would have remained a philosopher’s dream. In fact, every legal system has and must have some avenue for appeal for the sweetness of mercy from its laws. Granting this proposition, one may regard the metamorphosis of the office of the English chancellor from royal confidante and secretary of state to foremost judge in the realm as historically inevitable. The kings of England were perambulatory princes with their eyes on their French and Norman dominions. They had little time or expertise to manage the flow of petitions to them for exceptions from unjustly applied laws and against corrupt local legal officials. By the end of the thirteenth century, the chancellor was commissioned to hear and deal with these petitions in the name of the king. His rules for proceeding with such cases would ultimately become English equity, and his court would rival the king’s other central courts.

The procedura...

Table of contents

• Cover Page
• THE LAW’S CONSCIENCE
• Copyright Page
• Dedication
• CONTENTS
• PREFACE
• ACKNOWLEDGMENTS
• PROLOGUE BROWN V. BOARD OF EDUCATION, 1954
• 1. WHAT IS EQUITY?
• PART ONE TRUSTEESHIP
• PART TWO EQUALITY
• PART THREE REALITY
• EPILOGUE BALANCE OF EQUITY AND AFFIRMATIVE ACTION
• CONCLUSION
• A NOTE ON THE SOURCES
• NOTES
• INDEX