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     3  =/8The following from the Encyclopedia of the Constitution (1986) provided by on
     4  e of the teachers of which who many will follow Thanks Howard!
     5  
     6  First named (in article III) among the subjects to which the judicial power "sha
     7  ll extend" are "all cases, in Law and Equity, arising under this Constitution, t
     8  he Laws of the United States, and Treaties made or which shall be made, under th
     9  eir authority." The word "equity" has a technical meaning well comprehended by A
    10  merican lawyers of the eighteenth century, and still generally familiar to lawye
    11  rs in all legal systems derived from England. The explanations is necessarily hi
    12  storical. 
    13  In a development more than well begun in the Middle Ages, and pretty much comple
    14  ted by Stuart times, England developed a unique double system of courts at the n
    15  ational level-the "courts of law", or COMMON LAW courts, and the "court of equit
    16  y"-or, as it was often called, the "court of chancery."
    17  The common law courts administered a system of law that was RADICALLY DEFICIENT,
    18  [ emphasis mine ] first as to remedies available, and ,second, as to the breadth
    19  of considerations that could be taken into account in the formation of decisions
    20  . These courts could in most cases award only damages in money, in most cases a 
    21  step inadequate to doing full justice. The common law courts were also EXCESSIVE
    22  LY FORMALISTIC, [ emphasis mine ]. If for example, an error occurred in the tran
    23  scription of a written contract, the common law courts had no conceptual apparat
    24  us for dealing with the mistake. Similarly, they had little capacity for taking 
    25  into account the problems created by fraud. And the "trust," an institution of g
    26  reat importance, was utterly unknown to the common "common law".
    27  During the Middle Ages, suitors who could not get full justice out of the common
    28  law courts began to appeal to the Lord Chancellor, a high royal official, for su
    29  pplementary or corrective help. By Tudor times, this practice had been firmly in
    30  stitutionalized, so that the Lord Chancellor became in some sense a judicial off
    31  icer, hearing and dealing with such pleas. Little by little, the chancery came t
    32  o be known  a court. This court had at it's disposal a remedy enormously more ve
    33  rsatile and efficient than the award of damages- the remedy of the order, or com
    34  mand, that the defendant do or refrain from doing something. The chancery court,
    35  in contrast the courts of common law, knew nothing of the jury; the Chancellor d
    36  ecided all issues of fact and law. 
    37  This " court of chancery" opened it's eyes, more-over, to many things the common
    38  law courts were institutionally disabled from seeing.  While a suitor in the com
    39  mon law courts might, for example, get a JUDGMENT in his favor on a written cont
    40  ract procured by fraud on his part, the chancery court might order him to refrai
    41  n from collecting in a "law" judgment he had already procured by using it.
    42  Because this chancery court so often intervened in a name of a higher justice or
    43  of "conscience," it came to be thought of as (and called ) a "court of equity." 
    44  By the time of the drafting of the Constitution, the doctrines and practices of 
    45  this kind of "equity" had become well systematized. And most of the new states h
    46  ad borrowed from English practice the two part- system of  "law" courts and "cha
    47  ncery" courts, with the doctrines and remedial apparatus of equity available in 
    48  the latter. It is against this background that the constitutional phrase, "cases
    49  in law and equity," is to be understood. "Cases in  law" were such cases as woul
    50  d be heard by the common law courts; "cases in equity" were such as would be hea
    51  rd by the Court of Chancery, in England or in a state mirroring the English divi
    52  sion.
    53  At the very beginning, the new national government rejected (in Judiciary Act of
    54  1789) the idea of totally separate courts "law" and of "equity". The lower feder
    55  al courts combined "legal" and "equitable" Jurisdiction in the same judges. But 
    56  the ancient division was in some sense continued. Down to 1938, the federal dist
    57  rict court had the two separate sides of "law" and "equity" respectively--in add
    58  ition to such special jurisdictions as admiralty and bankruptcy. Even today, aft
    59  er the formal merger of "law" and "equity" cases under the single name of "civil
    60  action," lawyers still refer, for example, to the Injunction (an order to do or 
    61  not to do something) as "equitable relief."
    62  "Equity" cases, in the language of Article III, are of great importance. The Inj
    63  unction is enormously more flexible and powerful than the remedies-- mostly the 
    64  award of damages--available to the court in a "case at law". DRAMATIC examples a
    65  bound. It would have been impossible even to begin thinking about the lower fede
    66  ral courts desegregating the schools if those courts had not had the jurisdictio
    67  n over "cases in equity" seeking orders to state officials. On this jurisdiction
    68  al grant, indeed, rests the whole elaborate development of efficacious relief ag
    69  ainst official action thought to be unconstituional--ranging from injunctions ag
    70  ainst the enforcement  of unconstitutional laws (as in Pierce v Society of Siste
    71  rs, 1925, enjoining state enforcement of a law requiring all pupils to go to pub
    72  lic schools) to the running of state prisons by an Alabama district judge. (See 
    73  Institutional Litigation.) The Modern history of practical constitutional safegu
    74  ards is a history of the use of the "equitable" remedy of injunction, , together
    75  with the remedy of the Declatory Judgment-- a remedy that would probably have be
    76  en judged outside the "judicial power" were it not for its close analogy to "cas
    77  es in equity".
    78  Another characteristic of "cases in equity," overpoweringly important in the use
    79  of the national judicial power to protect constitutional rights against actions 
    80  of the states, is the court "court of equity" does not use the jury. This, as fa
    81  r as we can tell, is a gift of history; there appears to be no intrinsic reason 
    82  why a local jury should not find "the facts" in, say, school desegregation cases
    83  . Experience shows that local juries will not often convict, for example, in pro
    84  secutions for civil rights, where the jury is constitutionally required. The who
    85  le course of development of national protection of human rights against local op
    86  pression might have been quite different if it were not for the fact that the "c
    87  ourt of equity," the Lord Chancellors court, sat without a jury--so that the fed
    88  eral judge, wielding the vital weapons in the "equity remedial armory", does the
    89  same
    90  
    91  Charles L Black Jr.
    92  u{}
    93  BlWYuyyyyyyyyyyu5u6Times New Roman