Middle-English" epicheia," which is synonymous with equity, and which is obviously borrowed from the Greek dikaion employed by Aristotle to distinguish equity from law, epiciklia. John Gerson, who was the leading exponent of legal doctrines in the middle ages, describes the influence of epiciklia in these words: "aequitas quam nominat philosophus epikeiam praeponderat iuris rigori. Est autem aequitas iustitia pensatis omnibus circumstanciis particularibus dulcore misericordiae temperata. Hoc intellexit qui dixit. 'Ipsae autem leges cupiunt ut iure regantur.' Et sapiens. 'Noli esse iustus nimis alioquin summa iustitia summa iniustitia fit.' It is in this same sense that Cicero spoke of Aequitas as the spirit of the law and of Ius as the letter of the law. Also Glanville, writing at the end of the twelfth century, alludes to the virga aequitatis in describing the spirit in which Henry II. administered justice: "Ut utroque tempora pacis et belli gloriosus Rex noster ita feliciter transigat, ut infrenatorum et indomitorum dextra fortitudinis elidendo superbiam et humilium et mansuetorum aequitatis virga moderando institiam tam in hostibus debellandis semper victoriosus existat quam in subditis tractandis aequalis iugiter appareat.' It is unnecessary to multiply instances in illustration of the spirit of equity, but the distinction between “equity" or natural justice," or reasonableness on the one hand, and the common law on the other, is so clearly expressed in a modern French definition that we cannot refrain from quoting it : "On entend par droit naturel le droit idéal, celui qui est le plus conforme aux idées de justice, et dont la législature doit s'efforcer de se rapprocher le plus possible, dans la confection des lois. On entend par droit positif la loi qui est en vigueur à un moment donné sur le territoire d'un Etat Lorsqu'une loi est mal faite, lorsqu'elle blesse les idées de justice et d'équité, on dit qu'elle est contraire au droit naturel." It is obvious, then, that the broad principle underlying the doctrine of equity in its widest sense, is, and always has been, 2 Thus John Fisher has spoken of "epicheia whiche is proprely the mynde of the lawe," John Fisher, Penit. VII. Ps. * Gerson, " Regulae Morales (Op. ii. F). 5" Galba autem adludens varie et copiose multas similitudines adferre multaque pro aequitate contra ius dicere," Cicero de Oroat. i. 56 E. 240. Glanville, Prolog. iii. "La Synthèse du Droit," par Boitel et Foignet. one of reasonableness and natural justice in the protecting of rights and prevention of wrongs, and it is not unnatural that such a principle has been closely associated with the growth of the law; indeed it would be strange if it were otherwise. With this general outline of the nature of equity, short and imperfect as it necessarily is, we may now pass to consider the mode and extent of its application in our own legal system. The common law of England may be said to have taken shape towards the close of the twelfth century, when a record of decisions of the Courts was first kept. Prior to that time the law was naturally somewhat crude. There were no definite precedents to be followed, and there were no established principles for the guidance of the Court. Yet in the administration of this vague justice it may well be supposed that an equitable spirit granted relief in cases of particular hardship, though it is difficult to trace any clear acceptance of the principles of equity before the reign of Henry II. From that time onward records of judicial proceedings were collected, and our common law consists of the great mass of these compilations, having been gradually built up during centuries from decisions upon cases for which no previous provision was made by the existing law. They were decided, of course, as they had to be, according to a discretionary view of what was right and just. Each new decision then became a precedent to be followed in settlement of subsequent questions of a similar nature, and it is these precedents which form the common law of England as we know it. It is the strict and binding force of these precedents which has sometimes been described as the rigour of the law. Whether or not in particular cases where the application of the law created hardship, equity was at this early period (twelfth century) permitted to vary established precedents in the interests of justice there is no absolute certainty, though in the words of Lord Lyttleton "as in those days there was no distinct Court of Equity, the Judges of the King's Court had probably a power of mitigating in some cases the rigour of the law." An instance of such equitable relief is given by Glanville with reference to the early law of succession: Super hoc ultimo casu in Curia Domini Regis de consilio Curiae ita ex aequitate consideratum est . . ."9 The rigidity of the common law was exemplified in the strict formality which had to be observed by those who 9 Litt. Hist. of Life of Henry II., vol. 3, 8th ed., p. 315. sought redress thereunder. Prior to the Statute of Westminster II. (1285) there existed separate writs of ael, besael, and cosinage, to be employed in actions for a declaration of title, and differing only according as the title depended upon the seisin of a grandfather or a greatgrandfather and so on. Similarly there were separate writs in actions for trespass of pigs and trespass of cattle respectively. These are but isolated instances of the excessive formality required for a long time in the early common law, and if the form was not strictly complied with, the law would not interfere to assist a litigant, even in the redress of an intolerable hardship. Legislative enactments have, of course, played a prominent part in the growth of every legal system, and have frequently assisted the righteous claims of those who otherwise would have been without a remedy. But in all the legislation there is necessarily a certain infirmity, insomuch as laws must in every case be conceived in general terms. It is not possible that the letter of the law can be so expressed as to provide for the infinite variety of circumstances which may qualify particular cases. The influence of equity must therefore have a twofold application in the administration of statute law; in the first place it should influence the general terms of the law in the light of reason and justice; and secondly, it should assist in the interpretation of the law in accordance with the particular demands of individual circumstances. But beyond this power of assistance and interpretation in the growth and expansion of the law equity has no jurisdiction; and thus we have as one of the primary attributes of equity jurisprudence the maxim aequitas sequitur legem. Where the law provides definitely that something shall or shall not be done, equity cannot enjoin the contrary, however the interests of justice may appear to call for its intervention in an individual case. It is the province of the Judge to regard the intention of the legislature and to interpret the letter of the law in accordance with such intention: "Equity is a judicial interpretation of laws, which pre-supposing the legislator to have intended what is just and right, pursues and effectuates that intention."10 In cases where the law cannot be interpreted so as to give justice under especial and unforeseen circumstances, equity must assert itself by influencing the legislature and thereby relax the rigour of the law by express provision of Parlia 1 Wooddeson Lect., p. 192. ment. In illustration of such equitable relief by statute, where equity was powerless in the Courts, there may be mentioned among others the Statute against Fraudulent Devises and the Married Woman's Property Act. It must not be forgotten that in the early days of English legal history when the rigid provisions of the common law were of such paramount importance, and when equity, as importing justice and analogy alone, was hardly permitted to affect them, a much more liberal equity was being exercised in ecclesiastic circles by the canon lawyers. The canon law nad developed into a perfect system by the thirteenth century and was largely influenced by the principles of "conscience" and "reason." reason." The principles were later borrowed by the Chancery Courts when they were established, and were subsequently introduced into the administration of the common law in the fifteenth century for assisting the ignorant, for enforcing verbal contracts and for protecting transactions based upon confidence.11 The principles of conscience are, however, vague and uncertain, and unless they are guided within well-defined limits they may soon lead to a system of justice based solely upon individual and autocratic discretion. "Conscientiousness is good; the standard of the common law itself is in many respects higher than what commonly passes muster among men of good business repute, and it would be disastrous if it were lowered. Still the conscience of the Court, if it is to be an effective power, must not run away from the common sense of mankind."12 In a recent publication of the Selden Society13 Mr. Bolland discusses the exercise of an equitable jurisdiction by the Justices in Eyre early in the fourteenth century. There was a practice at this time, apparently introduced to enable poor people to reach the ear of the king, of presenting what were termed Bills of Eyre to the Justices in Eyre. These were informal addresses setting out in simple language the whole of the facts relating to the nature of complaint and begging for relief; indeed by their very illiteracy they disclose the absence of any expert knowledge on the part of those who 11 A full account of the influence of the canon law upon mediaeval common law is set out in Professor Vinogradoff's essay on "Reason and Conscience" in L. Q. R., vol. xxiv, p. 373. 12 Pollock, Expansion of the Common Law, at p. 116. "Eyre of Kent, vol. ii, Introd., p. xxi (Seld. Soc.). [The suitors in this form, however, were not always poor. Some of the claims are on business transactions for substantial sums.-F. P.] framed them. They were, in fact, no more than mere requests by persons who either from poverty, or for some other reason, were unable to obtain redress at law, and were probably the outcome of an immemorial belief that there existed in the king a right and power to remedy all wrongs independently of both common law and statute law. Whether or not these prayers for relief by Bills of Eyre take us back to the origin of equity jurisdiction in England it is difficult to say; at any rate, they afford an early illustration of the influence of equity in the administration of justice where the assistance of common law was inadequate. 14 With the development and progress of society there arose from time to time in England, as in other communities, fresh situations which called for departure from the existing stereotyped and inflexible system of law. Just as in Rome it had been found necessary to meet the social advancement of the people by the introduction of the praetorian law at the beginning of the second century B. C.,14 so also the improving conditions in England under the early Plantagenet dynasty called for a modification of the rigid principles of the common law, and gave rise to the formation of a second and independent legal jurisdiction during the reign of Edward I. At about this time a practice grew up that, when an aggrieved party was unable to obtain redress in the Courts of Law, he might make an application for relief to the King in Council, who thereupon referred the matter to the Chancellor. As these applications became more and more numerous, the Chancellor, as keeper of the King's conscience, was permited to dispense His Majesty's grace upon his own authority, dealing with the various questions directly, and in the reign of Edward III. the Courts of Chancery were established, in which relief could be obtained where it was not possible in a Court of Law. Thus Lambarde has said, in reference to the nature of the Chancellor's Court, " And likewise in his Court of Equitie he doth . . . cancell and shut up the rigour of the generall law."15 The name "equity" was applied to that department of law which the Chancellor enforced, because it was generally supposed, and rightly too, that he gave his decisions upon "See Papinian, Dig. 1, i. 7, s. 1 "Quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam." 15 Lambarde (William), "Archeion" (1635), 46. [The fantastic etymology looks rather as if Lambarde misunderstood John of Salisbury's well-known verse.-F. P.] |