But this is not the place to consider the nature or application of those rules.1

8. It is of this equity, as correcting, mitigating, or interpreting the law, that not only civilians but common law writers are most accustomed to speak;2 and thus many persons are misled into the false notion that this is the real and peculiar duty of Courts of Equity in England and America. St. German, after alluding to the general subject of Equity, says: "In some cases it is necessary to leave the words of the law, and to follow that reason and justice requireth, and to that intent equity is ordained, that is to say, to temper and mitigate the rigor of the law, &c. And so it appeareth that equity taketh not away the very right, but only that that seemeth not to be right by the general words of the law.' And then he goes on to suggest the other kind of equity, as administered in chancery, to ascertain Whether the plaintiff hath title in conscience to

1 See Grotius De Jure Belli ac Pacis, Lib. 3, ch. 20, § 47, pp. 1, 2; Grotius De Equitate, ch. 1. This paragraph is copied very closely from the article Equity,' in Dr. Lieber's Encyclopædia Americana, a license which has not appropriated another person's labors. There will be found many excellent rules of interpretation of laws in Rutherforth's Institutes of Natural Law, B. 2, ch. 7; in Bacon's Abridgment, title Statute;' in Domat on the Civil Law (Prelim. Book, tit. 1, § 2); and in 1 Black. Comm. Introduction, pp. 58 to 62. There are yet other senses in which Equity is used, which might be brought before the reader. The various senses are elaborately collected by Oldendorpius, in his work De Jure et Equitate Disputatio; and he finally offers what he deems a very exact definition of Equity in its general sense. Equitas est judicium animi, ex vera ratione petitum, de circumstantiis rerum, ad honestatem vitæ pertinentium, cum incidunt, recte discernens quid fieri aut non fieri oporteat.' This seems but another name for a system of ethics. Grotius has in one short paragraph (De Æquitate, ch. 1, § 2) brought together the different senses in a clear and exact manner. Et ut de Æquitate primum loquamur, scire oportet, æquitatem aut æquum de omni interdum jure dici, ut cum jurisprudentia ars boni et æqui dicitur; interdum de jure naturali absolute, ut cum Cicero ait, jus legibus, moribus, et Equitate constare; alias vero de hisce rebus, quas lex non exacte definit, sed arbitrio viri boni permittit. Sæpe etiam de jure aliquo civili proprius ad jus naturale accedente, idque respectu alterius juris, quod paulo longius recedere videtur, ut jus prætorium et quædam jurisprudentiæ interpretationes. Proprie vero et singulariter Æquitas est virtus voluntatis, correctrix ejus, in quo lex propter universalitatem deficit.'

2 See Merlin Répertoire, Equité; Grounds and Rudim. of the Law (attributed sometimes to Francis), pp. 3, 5, edit. 1751; 1 Fonbl. Equity, B. 1, ch. 1, § 2, note (e); 1 Wooddes. Lect. vii. pp. 192 to 200; Pothier, Pand. Lib. 1, tit. 3, art. 4, § 11 to 27.

Dialogue, 1, ch. 16.

2

6

recover or not.' And in another place he states: Equity is a rightwiseness, that considereth all the particular circumstances of the deed, which is also tempered with the sweetness of mercy.' Another learned author lays down doctrines equally broad. As summum jus,' says he, summa est injuria, as it cannot consider circumstances; and as this [equity] takes in all the circumstances of the case, and judges of the whole matter, according to good conscience, this shows both the use and excellency of equity above any prescribed law.' Again: 'Equity is that which is commonly called equal, just, and good; and is a mitigation or moderation of the common law, in some circumstances, either of the matter, person, or time; and often it dispenseth with the law itself.' The matters, of which equity holdeth cognizance in its absolute power, are such as are not remediable at law; and of them the sorts may be said to be as infinite, almost, as the different affairs conversant in human life.' 4 And he adds that equity is so extensive and various, that every particular case in equity may be truly said to stand upon its own particular circumstances; and therefore under favor I apprehend precedents not of that great use in equity, as some would contend, but that equity thereby may possibly be made too much a science for good conscience.' 5

9. This description of equity differs in nothing essential from that given by Grotius and Puffendorf, as a definition of general equity as contradistinguished from the equity which is recognized by the mere municipal code of a particular nation. And indeed it goes the full extent of embracing all things which the law has not exactly defined, but leaves to the arbitrary discretion of a judge; or, in the language of Grotius, de hisce rebus, quas lex non exacte definit, sed arbitrio viri boni permittit.' So that in this view of the matter an English Court of Equity would 1 Dialogue, 1, ch. 17.

8 Grounds and Rudim. pp. 5, 6, edit. 1751.

6

2 Id. ch. 16.
4 Id. p. 6.

5 Grounds and Rudim. pp. 5, 6, edit. 1751. Yet Francis (or whoever else was the author) is compelled to admit that there are many cases in which there is no relief to be had either at law or in equity itself; but the same is left to the conscience of the party, as a greater inconvenience would thence follow to the people in general. Francis, Max. p. 5.

6 Grotius De Equitate, ch. 1, §§ 3, 12; Puffend. Elem. Juris. Univ. L. 1, §§ 22, 23, cited 1 Fonbl. Eq. B. 1, ch. 1, § 2, note (e), p. 5.

7 Grotius De Equitate, ch. 1, § 2; 1 Fonbl. Equity, B. 1, ch. 1, § 2, note (e).

seem to be possessed of exactly the same prerogatives and powers as belonged to the prætor's forum in the Roman law.1

10. Nor is this description of the Equity Jurisprudence of England confined to a few text writers. It pervades a large class, and possesses the sanction of many high authorities. Lord Bacon more than once hints at it. In his Aphorisms he lays it down, Habeant similiter Curiæ Prætoriæ potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis.' And on the solemn occasion of accepting the office of Chancellor, he said: Chancery is ordained to supply the law, and not to subvert the law.' Finch, in his Treatise on the Law, says, that the nature of equity is to amplify, enlarge, and add to the letter of the law. In the Treatise of Equity attributed to Mr. Ballow, and deservedly held in high estimation, language exceedingly broad is held on this subject. After remarking that there will be a necessity of having recourse to the natural principles, that what is wanting to the finite may be supplied out of that which is infinite, and that this is properly what is called equity, in opposition to strict law, he proceeds to state: And thus, in chancery, every particular case stands upon its own circumstances; and although the common law will not decree against the general rule of law, yet chancery doth, so as the example introduce not a general mischief. Every matter therefore that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief here. For no man can be obliged to anything contrary to the law of nature; and indeed no man in his senses can be presumed willing to oblige another to it.'5

6

11. The Author has indeed qualified these propositions with the suggestion: But if the law has determined a matter with

1 Dig. Lib. 1, tit. 1, 1. 7. See also Heinecc. De Edict. Prætorum, Lib. 1, ch. 6, §§ 8 to 13; Id. §§ 18 to 30; Dr. Taylor's Elem. Civil Law, pp. 213 to 216; Id. 92, 93; De Lolme on Eng. Const. B. 1, ch. 11. Lord Kaims does not hesitate to say that the powers assumed by our Courts of Equity are in effect the same that were assumed by the Roman prætor from necessity, without any express authority. 1 Kaims, Eq. Introd. 19.

2 Bac. De Aug. Scient. Lib. 8, ch. 3, Aphor. 35, 45.

3 Bac. Speech, 4; Bac. Works, 488.

4 Finch's Law,

p. 20.

51 Fonbl. Eq. B. 1, ch. 1, § 3. The author of Eunomus describes the original jurisdiction of the Court of Chancery as a Court of Equity, to be 'the power of moderating the summum jus.' Eunomus, Dial. 3, § 60.

all its circumstances, equity cannot intermeddle.' But even with this qualification the propositions are not maintainable in the Equity Jurisprudence of England, in the general sense in which they are stated. For example, the first proposition, that equity will relieve against a general rule of law, is (as has been justly observed) neither sanctioned by principle nor by authority. For though it may be true that equity has in many cases decided differently from Courts of Law, yet it will be found that these cases involved circumstances to which a Court of Law could not advert, but which, in point of substantial justice, were deserving of particular consideration, and which a Court of Equity, proceeding on principles of substantial justice, felt itself bound to respect.2

12. Mr. Justice Blackstone has taken considerable pains to refute this doctrine. It is said,' he remarks, that it is the business of a Court of Equity in England to abate the rigor of the common law. But no such power is contended for. Hard was the case of bond creditors, whose debtor devised away his real estate; rigorous and unjust the rule which put the devisee in a better condition than the heir; yet a Court of Equity had no power to interfere. Hard is the common law still subsisting, that land devised or descending to the heir should not be liable to simple contract debts of the ancestor or devisor, although the money was laid out in purchasing the very land; and that the father shall never immediately succeed as heir to the real estate of the son. But a Court of Equity can give no relief; though in both these instances the artificial reason of the law, arising from feudal principles, has long since ceased.' And illustrations of the same character may be found in every State of the Union. In some States bond debts have a privilege of priority of payment over simple contract debts, in cases of insolvent intestate estates. In others judgments are a privileged lien on lands. In many, if not in all, a debtor may prefer one creditor to another, in discharging his debts, when his assets are wholly insufficient to pay all the debts. And (not to multiply in

1 Com. Dig. Chancery, 3, F. 8.

4

21 Fonbl. Eq. B. 1, ch. 1, § 3, note (g); 1 Dane's Abridg. ch. 9, art. 1, §§ 2, 3; Kemp v. Prayer, 7 Ves. 249, 250.

8 Grounds and Rudim. p. 74 (Max. 105), edit. 1751.

4 3 Black. Comm. 430. See Com. Dig. Chancery, 3 F. 8.

stances) what can be more harsh or indefensible than the rule of the common law by which a husband may receive an ample fortune in personal estate through his wife, and by his own act or will strip her of every farthing and leave her a beggar?

13. A very learned judge in equity, in one of his ablest judgments, has put this matter in a very strong light. The law is clear,' said he, and Courts of Equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be "secundum discretionem boni viri; " yet when it is asked, "Vir bonus est quis?" the answer is "Qui consulta patrum, qui leges juraque servat." And as it is said in Rook's case (5 Rep. 99. b.), that discretion is a science, not to act arbitrarily, according to men's wills and private affections; so that discretion which is executed here is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion in some cases follows the law implicitly; in others assists it, and advances the remedy; in others again it relieves against the abuse, or allays the rigor of it. But in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to the court. That is a discretionary power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with.'2

14. The next proposition, that every matter that happens inconsistent with the design of the legislator, or is contrary to natural justice, may find relief in equity, is equally untenable. There are many cases against natural justice, which are left wholly to the conscience of the party, and are without any redress, equitable or legal. And so far from a Court of Equity supplying universally the defects of positive legislation, or peculiarly carrying into effect the intent as contradistinguished from the text of the Legislature, it is governed by the same rules of

1 Sir Joseph Jekyll, in Cowper v. Cowper, 2 P. Will. 753.

2 Sir Thomas Clarke, in pronouncing his judgment in the case of Burgess v. Wheate (1 W. Black. R. 123), has adopted this very language, and given it his full approbation. See also 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (g). See also Fry v. Porter, 1 Mod. R. 300; Grounds and Rudim. p. 65 (Max. 92), edit. 1751.