Tuesday, February 2, 2021
There are many equitable and legal maxims. Some are substantive. Some are procedural. Some aid statutory construction. Some are more significant than others. Some we see more commonly, such as “Equity aids the vigilant, not those who sleep on their rights” (Laches) and “Equity looks to substance rather than form.” It has been said of equity’s maxims:
A medieval law book, dating from when Chancery Court was young and its maxims of fairness and reason were being born.
Equity has a number of them. Its developed doctrines—the abstractions of principle from decided cases—often took the form of statement not at all abstract. There is much imagery in equity. “He who seeks equity must come with clean hands.”… The maxims are all alive today, though their expression has lost color. They are less fixed rules than guides to judgment, in cases where the remedy sought is one the [English] Chancellors used to give.”
Despite their continued relevance, it is easy to fall into the misconception that maxims are simply quaint but arcane Tudor-age adages of little import today, especially when quoted in their elegant yet esoteric Latin form. This notion is born of modernity’s ignorance, arrogance and cynicism. If one foolishly believes in their morbidity, one deprives clients of their benefit and is exposed to the artful attack of lawyers who wisely respect and master them.
The venerable Gibson’s Suits in Chancery states of the lilting maxims: “The student who has made these principles a part of his mental habit, who has, as it were, incorporated them into his very intellectual being, has already mastered the essence of Equity and has made the acquisition of its particular rules an easy task.” Likewise, John Norton Pomeroy, America’s preeminent equity scholar of the twentieth century, said:
It must not be supposed that all these maxims are equally important, or that all have been equally fruitful in the development of doctrines and rules; but it is not an exaggeration to say that he who has grasped them all with a clear comprehension of their full meaning and effects has already obtained an insight into whatever is essential and distinctive in the system of equity jurisprudence, and has found the explanation of its peculiar doctrines and rules.
Sir Thomas More (1478-1535) “The Father of Equity Jurisprudence.” He gave equity order and binding precedent.
Thomas More’s Gift to Lawyers
In Renaissance England, before there was a mass of fully reported decisions, the maxims composed almost all the consultable court-made law. A legal historian has said:
Keeping in mind the imperative need to decide the cases presented to them, and the absence in many early cases of any clearly formulated rules to guide them, one can easily appreciate the value to the judges of simple legal maxims, brief rules of thumb encapsulating years of experience. Just as proverbs have been called the philosophy of the common people, so legal maxims once figured prominently in the judges’ decisions of leading cases. Indeed, the founding reports of the common law display a greater reliance on maxims than on precedents.
Maxims were particularly prevalent in the young Court of Chancery, initially presided over by churchmen concerned with morality, a tribunal arising out of the king’s council (the Curia Regis) not originally constrained by stare decisis. It boldly crafted new and mighty processes, defenses and in response to the inadequacy of the law and law courts, directly acting upon the person as remedies facts and fairness required. Hence, the maxims: “Equity will not suffer a wrong without a remedy;” “Equity regards that as done which ought to be done;” “When the reason for the law ceases, the law itself ceases;” “Equity acts specifically, and not by way of compensation;” and “Equity acts in personam.”
A 1705 Chancery opinion noted: “[T]he maxims of equity . . . reflect the ethical quality of the body of principles that has tended to . . . a determination of the conscionability or justice of the behavior of the parties according to recognized moral principles.” These fundamental principles or maxims, however, were gradually formed and refined over time in the red hot furnace of multitudinous litigation and shepherded by scores of learned chancellors.
In other words, cases made, illuminated and reconciled maxims, and together they comprise an intertwining body of jurisprudence: Equity. Tennessee’s authoritative equity treatise writer, Chancellor Henry R. Gibson, observed:
These principles are a component part of Equity jurisprudence. They lie at the foundation of universal justice; are the sources of municipal law; and have been worthy and aptly called legum leges—the law of laws. The maxims are, in the strictest sense, the principia, the beginning, out of which has been developed the entire system of Equity jurisprudence by a process of natural evolution.
In the sixteenth century, Sir Thomas More, the eminent London lawyer and the first non-cleric lord chancellor of England, saw a need for more than the drift of “natural evolution” and thus brought controlling rules and precedent to equity. Before More, equity was often the caprice and subjective fairness of the non-lawyer chancellor of the day. This was especially so under More’s pompous predecessor, Cardinal Wolsey. From 1529 to 1532, More proceeded to swiftly and skillfully organize and stabilize equity’s jurisprudential patterns as enduring guides, “precedent tempered by conscience and common sense.” This would come to be what Justice Joseph Story termed the “science” of equity.
Thomas More, therefore, is “the Father of Equity Jurisprudence.” His genius was in establishing the flexible framework upon which the popular and humane maxims of equity were preserved and developed after him out of countless cases as did the wider common law. Consequently, both law and equity follow the maxim of law: “Stare decisis et non quienta movere (Adhere to the decisions, and do not unsettle questions put to rest).”
Francis Bacon’s Gift to Lawyers
Maxims in law and equity abounded as commercial dealings grew and became more complex, such as those of partnerships, sureties and corporations. They became even more useful and accepted due to the efforts of Sir Francis Bacon, the famous philosopher, scientist, lawyer and chancellor. He searched the decisions. From the hundreds of maxims he located, he published the preeminent 25 in Latin in his classic book: Maxims of the Law (1630). The insignificant maxims were thereby winnowed out.
Sir Francis Bacon (1561-1626). He gave lawyers the first great book of maxims.
This volume, like Westlaw, Lexis and Fastcase of our time, gave the lawyers immediate accessibility to law, the law of the maxims. Bacon’s little book would be a mainstay of practice for hundreds of years. This gave the maxims even greater effect than if they were left scattered in the case law. Subsequently, in 1727, the first treatise devoted to equity jurisprudence was published. It centered on 14 key equitable maxims.
Today, the best place, in Tennessee or anywhere, to find the collected equitable maxims and their up-to-date explanation is Chapter 2 of Gibson’s Suits in Chancery, the celebrated “Bible of Tennessee Chancery.” Litigators would do well to read Chapter 2 once a year.
Another excellent discussion of basic equitable maxims is found in Chapter 3 of Joseph Story’s sweeping epic of equity, Commentaries on Equity Jurisprudence (1836). Story’s two-volume tome has had many editions and reprints and is still cited by the highest courts of America and Britain. For entertainment or curiosity, almost all the maxims — 2,613 active and defunct in English and Latin — can be found in reprinted versions of S. S. Peloubet’s A Collection of Legal Maxims in Law and Equity (1884).
The Nature and Use of Maxims
The major equitable maxims would come to embody one or more of four varying aspirations:
2. Preservation of equity’s discretionary nature; e.g., “Equity enforces what good reason and good conscience require.”
Like case law, maxims’ applicability to the dispute at bar can be debated, but not their institutional authority and abstract rationality. As commanded by the maxim on maxims: “Principia probant, non probantur (Maxims have an inherent probative force, and need not be proved).”
Justice Joseph Story (1775-1845). He championed the study of the “science” of equity, including its maxims.
Moreover, unlike an isolated, individual case precedent, a maxim has the force of the legions of cases from which it has been forged, tested and repeatedly found true. Of course, all legal principles have limits. For instance, use of an equitable maxim “must comport to and remain compatible with the prevailing legislative intent.”
Maxims are indispensable in the lawyer’s toolbox, particularly when it is the only tool one has. As Justice Scalia advised about their handy lifejacket utility:
A naked appeal to fairness in the face of seemingly contrary authority isn’t likely to succeed. Whenever possible, dress up the appeal with citation of some venerable legal maxim that supports your point. Such maxims are numerous, mostly derived from equity practice …. [Y]ou can almost always find one to support a defensible position.
Defending the Maxims: “The Law of Laws”
Sometimes maxims, often called “canons of construction” when they assist statutory interpretation, are demeaned by demonstrating that one can be played theoretically against the other, as if that silly strawman game renders them frivolous or of equal worthlessness. But the same can be done with about any decisional authority cited.
Maxims and case law rules must be applied to facts to have meaning. Most maxims will be inapplicable, while one may be “on all fours” depending on the facts. Courts must determine which case or maxim or canon advanced is the most pertinent to the circumstances before them. To wit, the most graceful and insightful of maxims: “The law is the shadow which the facts cast.”
Nationally Famous Tennessee Chancellor Henry R. Gibson (1837-1948) of Knoxville. Gibson called maxims “the law of laws.”
Furthermore, as to countering or “parrying” a canon (or maxim) with a canon, Justice Scalia said:
Mostly, however, “Parries” do not contradict the corresponding canon but rather merely show that it is not absolute. For example … “Words and phrases which have received judicial construction before enactment are to be understood according to that construction.” Parry: “Not if the statute clearly requires them to have a different meaning.” Well, certainly. Every cannon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield. But that does not render the entire enterprise a fraud—not at least, unless the judge wishes to make it so.
Maxims, “the law of laws,”  are justified by logic, fairness and experience, experience from adjudicating disputes through the repetitive perception of human nature and timeless values. Although maxims are the grand and beautiful poetry of the law, they are so much more. They are also more than convenient summations of law. They are law. Or, as they are defined, a maxim is a “principle of law universally admitted as being a correct statement of law, or as agreeable to reason.” 
Adopted and reaffirmed by courts like any other legal rule or test, maxims have the added benefit of many centuries of service and sanction. They are the distilled legal wisdom of the ages handed down to us, the living intellectual legacy left to the bench and bar, fashioned by lawyers’ pleadings and arguments as much as judges’ good reasoning.
Nor are the maxims limited to those as found by Chancellors More and Bacon. As the vast case law interpreting them demonstrate, courts have not necessarily finished improving, modernizing and, perhaps, creating them, as we employ our own knowledge, experience and sense of justice. Alfred Lord Denning, Britain’s greatest twentieth century jurist, said of the court of equity what is still true of all courts, “Chancery is not past the age of childbearing.”
RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including his regular column, "History's Verdict," in the Tennessee Bar Journal.
 Henry R. Gibson, Gibson’s Suits in Chancery § 2.16. (8th ed. 2004).
 Id. at § 2.10.
 Charles Rembar, The Law of the Land: The Evolution of Our Legal System 279 (1980).
 John Norton Pomeroy, Pomeroy’s Equity Jurisprudence § 363 (Students’ ed. 1907).
 John V. Orth, Due Process of Law: A Brief History 3 (2003).
 Gibson at § 2.02.
 Id. at § 2.12.
 Id. at § 2.31.
 Id. at § 2.03.
 Carter v. Brown, 196 Tenn. 35, 38; 263 S.W. 757, 748 (1953); 11 Tennessee Jurisprudence Equity § 13 (2004).
 Dudley v. Dudley, Prec. Ch. 241, 244 (1705).
 Gibson at § 2.01.
 Darien A. McWhirter, The Legal 100 243 (1998).
 G. R. Elton, Reform & Reformation 120 (1977).
 J. H. Baker, An Introduction to English Legal History 123 (3rd ed. 1990).
 Derek Wilson, In the Lion’s Court 291 (2002).
 Joseph Story, “The Value and Importance of Legal Studies” and “The Progress of Jurisprudence,” in The Miscellaneous Writings of Joseph Story 540, 205 (W.W. Story ed. 1852).
 Gibson at § 2.26.
 Orth at 3-4.
 Id. at 4.
 Baker at 128 (Citing R. Francis, Maxims of Equity (1727)).
 See A. K. R. Kiralfy, The English Legal System 71-72 (8th ed. 1990).
 Gibson at § 2.07.
 Id. at § 2.15.
 Id. at § 2.14.
 Id. at § 2.25.
 Id. at § 2.20.
 Id. at § 2.21.
 Id. at § 2.06.
 Robert Treat Whitehouse, 1 Equity Practice, State and Federal 51-52 (1915); Rembar at 279.
 Gibson at § 2.31.
 Fulghum Constr. Corp. v. Rainer, 706 F.2 171 (6th Cir. 1983); 11 Tennessee Jurisprudence Equity § 3 (2004).
 Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 30 (2008).
 See “Maxim” in William Statsky, West’s Legal Thesaurus and Dictionary 485 (1985).
 See, e.g., Karl N. Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules or Cannons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950).
 Gibson at § 2.31.
 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 27 (1997).
 Gibson at § 2.01.
 See “Maxim” in Black’s Law Dictionary 883 (5th ed. 1979).
 See Dan B. Dobbs, Handbook on the Law of Remedies 44 (1973).
 Eves v. Eves, 3 All E.R. 768, 771 (1975).
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