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The Constitution’s Deep Roots
teenth century, however, when great American legal scholars and jurists
such as Joseph Story and James Kent began publishing books on American law.
Sir Francis Bacon, Coke’s great political rival, was another important
English jurist and legal writer who had a great following in the American
colonies. In addition to his famous Essays and philosophical works, Bacon published a number of books on the law, including Elements of the
Common Law and Maxims of the Law. Among lawyers, Bacon was probably best known for his genius at stating the principles and philosophy of
the law in concise, memorable, and quotable aphorisms, and for his efforts as Lord Chancellor to strengthen equity jurisprudence and check
the power of the common law judges. Equity, or chancery as it is sometimes called, denotes fairness, and consists of a body of rules outside of
the common law that are intended to produce justice. It begins where the
law ends; it supplements the common law. Under the common law, for
example, there could be no relief in the way of compensation for a wrong
committed against an individual until the injury had actually occurred.
This worked a hardship in some cases, however, if an individual was permitted to engage in dangerous activity or was in possession of hazardous
property or material likely to produce injury. Equity courts in England,
like ecclesiastical and administrative courts, were separate from the common law courts, and were empowered to grant relief where the courts of
law were unable to give it or had made the law so technical that it failed
to promote the ‘‘King’s justice.’’ Equity courts thus had the power to issue injunctions (orders forbidding a party to do some act) in order to prevent an injury from occurring. In some instances they were allowed, in
effect, to circumvent rulings of the common law courts by providing
remedies that the common law courts could not give. As Lord Chancellor
under James I, Sir Francis Bacon presided over the equity courts as the
‘‘Keeper of the King’s Conscience.’’ In this role he frequently came into
conflict with Sir Edward Coke, who headed up the common law courts.
After the American colonies gained independence, most of the States,
with the notable exception of New York, combined law and equity in one
court, abolished separate courts of chancery, and extended the judicial
power to both law and equity. The Framers modeled the Constitution
along the same lines. Since 1789, when the first Judiciary Act was passed