328 CHAPTER XXII. EQUITY. 496. EQUITY derives its Name from Equality; and in the Conception, also, is understood to imply, in some way, equal advantages assigned to the parties contemplated. In this sense, attempts have been made, at various periods, to introduce the Conception of Equity, as explanatory of or supplementary to, the Conception of Justice. It will be found that this mode of conceiving Equity, has led to some Maxims which are worthy of notice. Aristotle* says that Inequality is one kind of Injustice; and that Injustice is to be remedied by Equality ;—by Equality of Ratios, in Distributive Justice;-by equality of Shares, in Corrective Justice. Thus Distributive Justice makes A's share be to B's share as A's right is to B's right: Corrective Justice takes from A, the wrong doer, and gives to B, who is wronged. But this view of the equality which constitutes Justice is partial and fanciful: it cannot be extended to cases in general. Still, there is a notion of Equality, as a kind of Justice. Cicero says, "Jus constat ex his partibus, Natura, Lege, Consuetudine, Judicato, Bono et Æquo, Pacto." This expression Bono et Equo was familiarly used in this sense by the Roman Lawyers. Thus Ulpian‡, “Jus est Ars Boni et Equi." And this notion of equal justice has been carried into some detail. Thus Grotius makes Equality the Rule of Contracts §; they require equality of knowledge; equality of liberty; and, within certain limits, equality of advantage. * Eth. Nich. v. 2. † Ad Herenn. II. 13. Jus consists of these portions; Natural Law, Positive Law, Custom, Decisions, Equity, Contract. + Dig. 1. i. 1. § B. et P. 11. xii. 8. 497. Justice and Equity, originally conceived as identical, in the course of time were separated; for Justice, in its administration, was necessarily fixed and limited by Laws and Rules; while Equity was conceived as not so limited. And as Laws and Rules, however much meant to be just, and however carefully constructed, will yet press upon individual cases in a way which seems hard; Equity was conceived as that kind of Justice which was not thus bound by Laws and Rules, and which was disposed to relieve such hardships. The Virtue which exists in such a disposition, is termed by Aristotle*, 'ETTICIкéta; and he defines it to be, The Correction of the Law, where it is defective by reason of its universality. The Law, he says, is necessarily universal in its expressions: but some things cannot rightly be expressed universally. There is a defect, not in the Law, nor in the Lawgivers; but in the nature of things. And the ἐπιεικες, or equitable, is opposed to the ἀκριβοdikátor, or rigidly just. The same opposition is repeatedly recognized in the Roman Law. Thus†, "Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris rationem." And in another place‡, "Hæc Equitas suggerit, etsi jure deficiamur.” And the Prætor's judicial office was sometimes described, as if its object were to administer Equity in this sense §: "Jus Prætorium est quod Prætores introduxerunt, adjuvandi, vel supplendi, vel corrigendi juris civilis gratiâ, propter utilitatem publicam." Similar functions have often been ascribed to the Jurisdiction of the Court of Chancery in England. Thus Bacon, on *Eth. Nich. v. 10. + Codex. III. 1. 8. It has been thought good that regard be had to Justice and Equity, rather than to strict Rights. us. ‡ Dig. xxx. iii. 2. 5. This is suggested by Equity, although Law fails Dig. 1. 1. 7. Prætors' Law is that which the Prætors have introduced, for the public good, for the sake of helping out, supplementing, and correcting the Civil Law. occasion of assuming the office of Chancellor, says, "Chancery is ordained to supply the Law, not to subvert the Law: and Chancellor Finch says, that the nature of Equity is to amplify, enlarge, and add to the letter of the Law. This has sometimes been stated by saying, that Equity decidest "de rebus quas Lex non exacté definit, sed arbitrio boni viri permittit." 498. But this description of Equity is too vague to be applicable; and has not been really accepted and acted upon in the administration of Justice, either in Rome or in England. For a Justice, administered, not according to Rules, but according to the immediate aspect of each case, would be deficient in the first requisite of Justice, that of being consistent with itself. We have already said (339), that Rules are necessary in Morality, to subdue the temptations of special cases; they are especially necessary as regards Justice, to correct the delusive aspect of particular cases. To leave the decision of cases to the conscience of the Judge, however wise and good, would lead to those arbitrary decisions which Justice especially abhors. In this view, Selden's condemnation of Equity is deserved‡; "For Law we have a measure, and we know what to trust to. Equity is according to the Conscience of him who is Chancellor; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be!" Since Morality is governed by fixed Rules, Equity, which is a part of Morality, must also have its fixed Rules. And as the Rules of Law are the foundations of Justice, the Rules of Equity cannot be in general inconsistent with those of Law. * Bacon's Works, Iv. 488. + Grot. De Equitate. Concerning things which the Law does not exactly define, but leaves to the discretion of a good man. + Table Talk. 499. Accordingly, the Prætor's power did not extend to the overthrow or disregard of the written Law. When the law was applicable, the Prætor was to stand by it*; and we find such remarks as thist: "Quod quidem perquam durum est; sed ita lex scripta est." Nor does a Court of Equity in England decide differently from a Court of Law, except in cases which involve circumstances to which a Court of Law cannot advert. Equity, as we have said, has its Maxims; and one of the first of these Maxims ist, Equitas sequitur Legem; Equity follows the Law. 500. Nor does Jurisprudential Equity fill up the measure of the description of Moral Equity, that it abates the rigour of the Law. Blackstone has shown how far this is from being a description of the Equity of English Courts. No such power of abating the rigour of Law, he says, is contended for by the Court of Chancery §. The Law is rigorous, which declares that land which a man bequeaths to a legatee shall not, after his death, be liable to simple contract debts, even if the debt be for money employed in purchasing this very land. The Law is rigorous which commands that the father shall never immediately succeed as heir to the land of the son: yet in these cases, a Court of Equity can give no relief. Jurisprudential Equity, therefore, does not extend to Cases of legal hardship in general. 501. In a certain sense, however, and to a certain extent, Equity does supply defects in the Law. Equity, as a branch of Jurisprudence, must, like all branches of Jurisprudence, act by definite Processes, and according to fixed Rules. But the Processes and the Rules of Equity Jurisprudence, came into being, at first, as remedies to the defects of Law: and though, by being reduced to a fixed form and settled maxims, they can no longer be appealed to * Story. Commentaries on Equity, p. 6. + Dig. XL. ix. 12. 1. This is very hard: but this is the written law. Story. Eq. § Comm. III. 430. as remedies for all hardships and defects of Law, they have still a remedial and suppletory character. This agrees with the account which the best authorities give of the origin of the Equitable Jurisdiction of the Court of Chancery in England. In the Common or traditional Law of England, the process of an action began by certain writs or documents of prescribed form, which were issued from the King's Chancery, on application made there; and which brought the action into the Courts of Common Law. The Chancellor, therefore, (according to Lord Hardwicke,) when any petition for such a writ was referred to him, was the most proper judge, whether such a writ could be framed and issued, as might furnish an adequate relief to the party; and if he found the Common Law remedies deficient, he might proceed according to the extraordinary power committed to him by the reference*; "Ne Curia Regis deficeret in justitiâ exercendâ." Thus the exercise of an equitable jurisdiction by the Chancellor, arose from his being the Officer to whom applications were made, for writs on which to ground actions at the Common Law. Where that Law afforded no remedy, he was led to extend a discretionary remedy; and thus, the forum of Common Law and the forum of Equity were separated in England†. 502. It is not necessary to prosecute further our account of Jurisprudential Equity; since our business is rather with Moral Equity. And by tracing the course of the development of this Conception, as we have now stated it, we are able to give a connected account of this moral quality. We may accept, as a starting point, Aristotle's Definition Equity is a Correction of Law where it is defective by reason of its universality. But Equity itself must proceed by fixed Laws, otherwise it would be defec : * Lest the King's Court should be deficient in administering justice. + Story. Eq. 44. |