Page images










1. IN treating of the subject of Equity it is material to distinguish the various senses in which that word is used. For it cannot be disguised that an imperfect notion of what, in England, constitutes Equity Jurisprudence is not only common among those who are not bred to the profession, but that it has often led to mistakes and confusion in professional treatises on the subject. In the most general sense we are accustomed to call that Equity which in human transactions is founded in natural justice, in honesty and right, and which properly arises ex æquo et bono. In this sense it answers precisely to the definition of justice, or natural law, as given by Justinian in the Pandects. Justitia est constans et perpetua voluntas jus suum cuique tribuendi.' 'Jus pluribus modis dicitur. Uno modo, cum id quod semper æquum et bonum, jus dicitur, ut est jus naturale.' 'Juris præcepta sunt hæc; honeste vivere, alterum non lædere, suum cuique tribuere.'1 And the word 'jus' is used in the same sense in the Roman law, when it is declared that 'jus est ars boni et æqui,' where it means what we are accustomed to call jurisprudence.3


1 Dig. Lib. 1, tit. 1, 1. 10, 11.


Dig. Lib. 1, tit. 1, 1. 1.

3 Grotius, after referring to the Greek word used to signify Equity, says, Latinis autem æqui prudentia vertitur, quæ se ita ad æquitatem habet, ut jurisprudentia ad justitiam.' Grotius de Equitate, ch. 1, § 4. This distinction is more refined than solid, as the citation in the text shows. See also

VOL. I.-1

2. Now it would be a great mistake to suppose that Equity, as administered in England or America, embraced a jurisdiction so wide and extensive as that which arises from the principles of natural justice above stated. Probably the jurisprudence of no civilized nation ever attempted so wide a range of duties for any of its judicial tribunals. Even the Roman law, which has been justly thought to deal to a vast extent in matters ex æquo et bono, never affected so bold a design. On the contrary it left many matters of natural justice wholly unprovided for, from the difficulty of framing any general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, and kindness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious consideration.2 Thus it is well known that in the Roman law, as well as in the common law, there are many pacts, or promises of parties (nude pacts), which produce no legal obligation capable of enforcement in foro externo, but which are left to be disposed of in foro conscientiæ only.3 'Cum nulla subest causa propter conventionem, hic constat non posse constitui obligationem. Igitur nuda pactio obligationem non parit.'4 And again: Qui autem promisit sine causa, condicere quantitatem non potest, quam non dedit, sed ipsam obligationem.' And hence the settled distinction, in that law, between natural obligations, upon which no action lay, but which were merely binding in conscience, and civil obligations, which gave origin to actions. The latter were sometimes called




Taylor's Elements of the Civil Law, pp. 90 to 98. Cicero, Topic. § 2; II. ad Heren. 13; III. ad Heren. 2. Bracton has referred to the various senses in which jus' is used. Item,' says he, 'jus quandoque ponitur pro jure naturali, quod semper bonum et æquum est; quandoque pro jure civili tantum; quandoque pro jure prætorio tantum; quandoque pro eo tantum, quod competit ex sententia.' Bracton, lib. 1, ch. 4, p. 3. See Dr. Taylor's definition of 'lex' and 'jus.' Elem. Civ. Law, pp. 147, 148; Id. 178; Id. 40 to 43; Id. 55, 56; Id. 91.

[ocr errors]

1 See Heinecc. Hist. Edit. L. 1, ch. 6; De Edictis Prætorum, §§ 7, 8, 9, 10, 11, 12; Id. §§ 18, 21 to 30; De Lolme on Eng. Const. B. 1, ch. 11.

2 Ayliffe, Pand. B. 4, tit. 1, p. 420, &c.; 1 Kaims, Equity, Introd. p. 3; Francis, Maxims, Introd. pp. 5, 6, 7.

Ayliffe, Pand. B. 4, tit. 2, pp. 424, 425; 1 Domat, Civ. Law, B. 1, tit. 1, § 5, arts. 1, 6, 9, 13.

5 Dig. Lib. 12, tit. 7, 1. 1.

4 Dig. Lib. 2, tit. 14, 1. 7, § 4.

Ayliffe, Pand. B. 4, tit. 1, pp. 420, 421.

« PreviousContinue »