6

just, because of their perfect obligation in a civil sense; the former merely equitable, because of their imperfect obligation. Et justum appellatur,' says Wolfius, quicquid fit secundum jus perfectum alterius; æquum vero, quod secundum imperfectum.'1 Cicero has alluded to the double sense of the word 'Equity' in this very connection. Æquitatis,' says he,' autem vis est duplex; cujus altera directi et veri et justi, ut dicitur, æqui et boni ratione defenditur; altera ad vicissitudinem referendæ gratiæ pertinet; quod in beneficio gratia, in injuria ultio nominatur.' It is scarcely necessary to add that it is not in this latter sense, any more than in the broad and general sense above stated, which Ayliffe has with great propriety denominated Natural Equity,' because it depends on and is supported by natural reason, that equity is spoken of as a branch of English Jurisprudence. The latter falls appropriately under the head of Civil Equity,' as defined by the same author, being deduced from and governed by such civil maxims as are adopted by any particular state or community.3

3. But there is a more limited sense in which the term is often used, and which has the sanction of jurists in ancient as well as in modern times, and belongs to the language of common life as well as to that of juridical discussions. The sense here alluded to is that in which it is used in contradistinction to strict law, or strictum et summum jus. Thus Aristotle has defined the very nature of equity to be the correction of the law wherein it is defective by reason of its universality. The same sense is repeatedly recognized in the Pandects. In omnibus quidem, maxime tamen in jure, æquitas spectanda sit. Quotiens æquitas, desiderii naturalis ratio, aut dubitatio juris moratur, justis decretis res temperanda. Placuit in omnibus rebus præ

1 Wolff. Instit. Jur. Nat. et Gent. P. 1, ch. 3, § 83.

2 Cic. Orat. Part. § 37.

8 Ayliffe, Pand. B. 1, tit. 7, p. 37.

4 Arist. Ethic. Nicom. L. 5, ch. 14, cited 1 Wooddes. Lect. (Lect. vii.) p. 193; Taylor, Elem. of Civ. Law, pp. 91, 92, 93; Francis, Maxims, 3; 1 Fonbl. Eq. B. 1, § 2, p. 5, note (e). Cicero, speaking of Galba, says that

เ

he was accustomed, Multa pro æquitate contra jus dicere.' Cic. de Oratore, Lib. 1, § 57. See also other passages, cited in Taylor's Elem. of the Civ. Law, 90, 91. Bracton defines equity as contradistinguished from law (' jus'), thus: 'Equitas autem est rerum convenientia, quæ in paribus causis paria desiderat jura, et omnia bene coæquiparat; et dicitur æquitas, quasi æqualitas.' Bracton, Lib. 1, ch. 4, § 5, p. 3.

cipuam esse justitiæ æquitatisque, quam stricti juris rationem.'1 Grotius and Puffendorf have both adopted the definition of Aristotle; and it has found its way, with approbation, into the treatises of most of the modern authors who have discussed the subject.2

4. In the Roman Jurisprudence we may see many traces of this doctrine, applied to the purpose of supplying the defects of the customary law, as well as to correct and measure the interpretation of the written and positive code. Domat accordingly lays it down, as a general principle of the civil law, that if any case should happen which is not regulated by some express or written law, it should have for a law the natural principles of equity, which is the universal law, extending to everything.3 And for this he founds himself upon certain texts in the Pandects, which present the formulary in a very imposing generality. Hæc Æquitas suggerit, etsi jure deficiamur,' is the reason given for allowing one person to restore a bank or dam in the lands of another, which may be useful to him, and not injurious to the other.4 (a)

1 Dig. Lib. 50, tit. 17, 1. 85, 90; Cod. Lib. 3, tit. 1, 1. 8.

2 Grotius de Æquitate, ch. 1, § 3; Puffend. Law of Nature and Nat. B. 5, ch. 12, § 21, and Barbeyrac's note (1); 1 Black. Comm. 61; 1 Wooddes. Lect. vii. p. 193; Bac. de Aug. Scient. Lib. 8, ch. 3, Aphor. 32, 35, 45. Grotius says, Proprie vero et singulariter æquitas est virtus voluntatis, correctrix ejus, quo lex propter universalitatem deficit.' Grotius de Equitate, ch. 1, §2. Equum est id ipsum, quo lex corrigitur.' Id. Dr. Taylor has with great force paraphrased the language of Aristotle. That part of unwritten law,' says he, 'which is called Equity, or Tò Еmeikes, is a species of justice distinct from what is written. It must happen either against the design and inclination of the lawgiver, or with his consent. In the former case, for instance, when several particular facts must escape his knowledge; in the other, when he may be apprized of them indeed but by reason of their variety is not willing to recite them. For if a case admits of an infinite variety of circumstances, and a law must be made, that law must be conceived in general terms.' Taylor, Elem. Civ. Law, 92. And of this infirmity in all laws the Pandects give open testimony. 'Non possunt omnes articuli singillatim aut legibus, aut senatusconsultis comprehendi; sed cum in aliqua causa sententia eorum manifesta est, is, qui jurisdictioni præest, ad similia procedere, atque ita jus dicere debet.' Dig. Lib. 1, tit. 3, 1. 12; Id. 1. 10.

8 1 Domat, Prel. Book, tit. 1, § 1, art. 23. See also Ayliffe, Pand. B. 1, tit. 7, p. 38.

4 Dig. Lib. 39, tit. 3, 1. 2, § 5.

(a) It is held however that equity will not aid the doing of what would

Domat cites other texts not perhaps quite

work no good to the plaintiff but only hardship to the defendant. Joliet

5. The jurisdiction of the prætor doubtless had its origin in this application of equity, as contradistinguished from mere law. 'Jus autem civile,' say the Pandects, est, quod ex legibus, plebiscitis, senatusconsultis, decretis principum, auctoritate prudentum venit. Jus prætorium est, quod prætores introduxerunt, adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam; quod et honorarium dicitur, ad honorem prætorum sic nominatum.' But broad and general as this language is, we should be greatly deceived if it were to be supposed that even the prætor's power extended to the direct overthrow or disregard of the positive law. He was bound to stand by that law in all cases to which it was justly applicable, according to the maxim of the Pandects, Quod quidem perquam durum est; sed ita lex scripta est.'2

so stringent; such as Dig. Lib. 27, tit. 1, 1. 13, § 7; Id. Lib. 47, tit. 20, 1. 7. Dr. Taylor has given many texts to the same purpose. Elem. Civ. Law, pp. 90, 91. There was a known distinction in the Roman law on this subject. Where a right was founded in the express words of the law, the actions grounded on it were denominated Actiones Directa; where they arose upon a benignant extension of the words of the law to other cases, not within the terms, but within what we should call the equity of the law, they were denominated Actiones Utiles. Taylor, Elem. Civ. Law, 93.

1 Dig. Lib. 1, tit. 1, 1. 7; Id. tit. 3, 1. 10. 'Sed et eas actiones, quæ legibus proditæ sunt,' say the Pandects, 'si lex justa ac necessaria sit, supplet prætor in eo, quod legi deest.' Dig. Lib. 19, tit. 5, 1. 11. Heineccius, speaking of the prætor's authority, says, 'His Edictis multa innovata, adjuvandi, supplendi, corrigendi juris civilis gratia, obtentuque utilitatis publicæ.' 1 Heinecc. Elem. Pand. P. 1, Lib. 1, § 42.

2 Dig. Lib. 40, tit. 9, 1. 12, § 1. See also 3 Black. Comm. 430, 431; 1 Wooddes. Lect. vii. pp. 192 to 200. Dr. Taylor (Elem. of the Civil Law, p. 214) has therefore observed, that for this reason this branch of the Roman law was not reckoned as part of the jus civile scriptum by Papinian, but stands in opposition to it. And thus, as we distinguish between common law and equity, there were with that people actiones civiles et prætoriæ, et obligationes civiles, et prætoriæ. The prætor was therefore called Custos, non conditor juris; judicia exercere potuit; jus facere non potuit; dicendi, non condendi juris potestatem habuit; juvare, supplere, interpretari, mitigare jus civile potuit; mutare vel tollere non potest.' The prætorian edicts are not properly law, though they may operate like law. And Cicero, speaking of contracts bonæ fidei, says, in allusion to the same jurisdiction, 'In his magni esse judicis statuere (præsertim cum in plerisque essent judicia contraria), quid

R. Co. v. Healy, 94 Ill. 416. But while equity will not aid in enforcing a mere legal right in such a case, it is held that equity will not enjoin the

owner of the right from proceeding to exercise it. Clinton v. Myers, 46 N. Y. 511.

6. But a more general way in which this sense of Equity, as contradistinguished from mere law, or strictum jus, is applied, is to the interpretation and limitation of the words of positive or written laws; by construing them, not according to the letter, but according to the reason and spirit of them.1 Mr. Justice Blackstone has alluded to this sense in his Commentaries, where he says: From this method of interpreting laws, by the reason of them, arises what we call Equity;'2 and more fully in another place, where he says, 'Equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, Equity is synonymous with justice; in that, to the true and sound interpretation of the rule.' 3

7. In this sense Equity must have a place in every rational system of jurisprudence, if not in name, at least in substance.1 It is impossible that any code, however minute and particular, should embrace or provide for the infinite variety of human affairs, or should furnish rules applicable to all of them. Neque leges, neque senatusconsulta ita scribi possunt,' says the Digest, ' ut omnes casus, qui quandoque inciderint, comprehendantur; sed sufficit ea, quæ plerumque accidunt, contineri.'5 Every system

quemque cuique præstare oporteret; that is, he should decide according to equity and conscience. Cic. de Officiis, Lib. 3, cap. 17. Dr. Taylor has, in another part of his work, gone at large into equity and its various meanings in the civil law. Taylor, Elem. of Civil Law, pp. 90 to 98.

1 Plowden, Comm. pp. 465, 466.

2 1 Black. Comm. pp. 61, 62.

8 3 Black. Comm. p. 429. See also Taylor, Elem. Civil Law, pp. 96, 97; Plowd. Comm. p. 465, Reporter's note. Dr. Taylor has observed that the great difficulty is to distinguish between that equity which is required in all law whatsoever, and which makes a very important and a very necessary branch of the jus scriptum, and that equity which is opposed to written and positive law, and stands in contradistinction to it. Taylor, Elem. Civil Law, p. 90.

4 See 1 Fonbl. Equity, B. 1, § 3, p. 24, note (h); Plowden, Comm. p. 465, 466. Lord Bacon said, in his Argument on the jurisdiction of the Marches, 'There is no law under heaven which is not supplied with Equity; for “Summum jus summa injuria;" or as some have it, "Summa lex summa crux." And therefore all nations have equity.' 4 Bac. Works, p. 274. Plowden, in his note to his Reports, dwells much (pp. 465, 466) on the nature of equity in the interpretation of statutes, saying, 'Ratio legis est anima legis.' And it is a common maxim in the law of England that 'Apices juris non sunt jura.' Branch's Maxims, p. 12; Co. Litt. 304 (b).

Dig. Lib. 1, tit. 3, 1. 10.

of laws must necessarily be defective; and cases must occur to which the antecedent rules cannot be applied without injustice, or to which they cannot be applied at all. It is the office therefore of a judge to consider whether the antecedent rule does apply, or ought, according to the intention of the lawgiver, to apply to a given case; and if there are two rules nearly approaching to it, but of opposite tendency, which of them ought to govern it; and if there exists no rule applicable to all the circumstances, whether the party should be remediless, or whether the rule furnishing the closest analogy ought to be followed. The general words of a law may embrace all cases; and yet it may be clear that all could not have been intentionally embraced, for if they were, the obvious objects of the legislation might or would be defeated. So words of a doubtful import may be used in a law, or words susceptible of a more enlarged or of a more restricted meaning, or of two meanings equally appropriate. The question in all such cases must be, in what sense the words are designed to be used; and it is the part of a judge to look to the objects of the Legislature, and to give such a construction to the words as will best further those objects. This is an exercise of the power of equitable interpretation. It is the administration of equity as contradistinguished from a strict adherence to the mere letter of the law. Hence arises a variety of rules of interpretation of laws according to their nature and operation, whether they are remedial, or are penal laws, whether they are restrictive of general right, or in advancement of public justice or policy; whether they are of universal application, or of a private and circumscribed intent.

1 It is very easy to see from what sources Mr. Charles Butler drew his own statement (manifestly, as a description of English Equity Jurisprudence, incorrect, as Professor Park has shown), 'That equity, as distinguished from law, arises from the inability of human foresight to establish any rule which, however salutary in general, is not in some particular cases evidently unjust and oppressive, and operates beyond or in opposition to its intent, &c. The grand reason for the interference of a Court of Equity is, that the imperfection of the legal remedy, in consequence of the universality of legislative provisions, may be redressed.' 1 Butler's Reminisc. 37, 38, 39; Park's Introd. Lect. 5, 6. Now Aristotle or Cicero, or a Roman prætor, or a Continental jurist, or a publicist of modern Europe, might have used these expressions as a description of general Equity; but it would have given no just idea of equity as administered under the municipal jurisprudence of England.