576 

LECTURE XXXIII.

DIFFERENT MEANINGS OF EQUITY.

Origin of term Equity as meaning Law.

As I remarked in the Lecture before the last, the original jus gentium is the universal and subsidiary law which was introduced into Italy by the edicts of the Prætores Peregrini, and was afterwards extended to the outlying Provinces by the edicts of their Presidents or Governors.

This law, introduced in subsidium by the edicts of these Prætors and Presidents, was styled jus gentium, or jus omnium gentium, because it was common to the nations composing the Roman world, and was neither peculiar to the sovereign State, nor to any of the States (formerly foreign and independent) which her victorious arms had reduced to dependence or subjection.

Being common to the nations composing the Roman world, and not peculiar to Rome or any of the subordinate communities, this law, introduced in subsidium by the edicts of the Prætors and Presidents, was also styled jus æquum, jus æquabile, or æquitas: That is to say, Law universal or general, and not particular or partial.

Equity as meaning impartiality.

This subsidiary law being distinguished from the peculiar systems to which it was a supplement by its comparatively large and liberal spirit, æquitas, which was one of its names, and which (as one of its names) indicated its universality, gradually came to signify impartiality: regard to the interest of all whose interests ought to be regarded, as distinguished from exclusive or partial regard to the interests of some.

This is the secondary sense of the term æquitas, when it is used in a secondary sense with perfect propriety: Equity as meaning any law, or principle of legulation, which the speaker means to commend.Though the term is often applied, by an improper extension of its meaning, to some system of law, or to some principle of direct or judicial legislation, which the speaker or writer, for any reason, praises or commends.

Of all the various objects which are denoted by this slippery expression, the most interesting, and the most complex, are those portions of Roman and of English law, which arose from the Edicts of the Prætores Urbani, and from judicial decisions of our own Chancellors as exercising their extraordinary jurisdiction. And, accordingly, those portions of Roman and of English Law, are the Æquitas, or the Equity, to which I shall more especially direct my attention.

Confusion of Equity as meaning Law, with Equity in its other senses.

577But before I proceed to ‘Equity’ as meaning a department of Law, I will briefly advert to a few of the other and numerous meanings which are not unfrequently attached to that most ambiguous term. For ‘equity’ (as meaning law) being often confounded with ‘equity’ as meaning something different, gross misconceptions of ‘equity,’ as denoting a portion or department of positive law, are commonly entertained by the simple laity, and not unfrequently by lawyers.

Supposition that ‘Law and Equity’ is a universal and necessary distinction.

If I liked, I could point at books and speeches, by living lawyers of name, wherein the nature of the Equity administered by the Chancellor, or the nature of the jurisdiction (styled extraordinary) which the Chancellor exercises, is thoroughly misapprehended:—Wherein the anomalous distinction between Law and Equity is supposed to rest upon principles necessary or universal; Confusion of Equity as meaning Law, with Equity as meaning arbitrium.or (what is scarcely credible) wherein the functions of the Chancellor, as exercising his extraordinary jurisdiction, are compared to the arbitrium boni viri, or to the functions of an arbiter released from the observance of rules.

It is manifest on a moment’s reflection, that, if our Courts of Equity were arbitrary tribunals, they would destroy the security, and the feeling of security, which ought to be the principal end of political government and law.

Equity = universality. Ergo, Impartiality. Ergo, applicable to any good law, etc.

Taken in its primary sense, equity, or æquity, is synonymous with universality. In which primary sense it was applied to the jus gentium of the earlier Roman Law, because the jus gentium of the earlier Roman Law was æquum, or common, and not restricted or particular.⁴⁵ The jus gentium to which it was applied being distinguished by comparative fairness, equity came to denote (in a secondary sense) impartiality. And impartiality being good, equity is often extended (as a vague name of praise) to any system of law, or to any principle of direct or judicial legislation, which, for any reason, is supposed to be worthy of commendation.

The applications of the term ‘equity’ are extremely numerous. But, in almost every instance wherein it is applied, one of the meanings now indicated is the basis of the complex notion which the term is employed to mark. With this preliminary remark I shall proceed to enumerate certain of the senses which the term bears, when it does not denote a certain portion of positive law.

Equity as meaning extensive (or restrictive) interpretation, ex ratione legis.

First:)⁴⁶ There is a species of interpretation or construction 578(or rather of judicial legislation disguised with the name of interpretation) by which the defective but clear provisions of a statute are extended to a case which those provisions have omitted. As I shall endeavour to shew (when I attempt to examine the difference between direct and judicial legislation), this species of interpretation or construction is not interpretation or construction properly so called. The specific provisions of the statute, and the specific intention of the lawgiver, are perfectly unequivocal or certain. It is certain that the case is not embraced by the law, and was not present to the mind of the lawgiver when he constructed the law. But since its provisions would have embraced the case, if its author had pursued consequentially his own general design the judge (exercising a power expressly or tacitly given to him) completes the defective provisions actually comprised in the law; and supplies the defective intention which its maker actually entertained, from the predominant purpose or end which moved him to make the statute. The judge extends the law to the omitted case, because the omitted case falls within the general design, although it is not embraced by the actual and unequivocal provisions. Or, adopting the current but absurd expression, the judge interprets the law extensively, in pursuance of its reason or principle.

The so-called interpretation which I have briefly and loosely described is widely different from the genuine extensive interpretation which takes the reason of the law as its index or guide. In the latter case, the reason or general design is unaffectedly employed as a mean for discovering or ascertaining the specific and doubtful intention. In the former case the reason or principle of the statute is itself erected into a law, and is applied to a species or case which the lawgiver has manifestly overlooked. The bastard extensive interpretation ex ratione legis, is not unfrequently styled equity. Or a law is said to be interpreted agreeably to the demands of equity, when its provisions are extended to an omitted case, because that omitted case falls within its reason.

Now in this application of the term ‘Æquitas,’ the radical idea is ‘uniformity’ or ‘universality.’ The law (it is supposed) should be applied uniformly to all the cases which come within its principle. For the law (it is assumed) would have embraced all such cases, if the legislator had adverted completely to the 579consequences which its principle implies. ‘Quod in re pari valet, valeat in hac quæ par est. Valeat æquitas: quæ paribus in causis paria jura desiderat.’ For the same reason, this bastard extensive interpretation ex ratione legis is frequently styled ‘analogical.’

The cases which the law omits (but which fall within its principle) and the cases which fail within its principle, and which it actually includes, are analogous. Or (changing the expression) they are resembling cases, with reference to that common principle, in spite of the differences by which they are distinguished when viewed from other aspects. And, since they are resembling cases with reference to the principle of the law, analogy (as well as equity) is said to require, that the law should be applied to all of them in an equable or uniform manner. Equity and Analogy (as thus understood) are exactly equivalent expressions. ‘Æquitas (say the lawyers) paribus in causis paria jura desiderat,’ ‘Analogia (say the Grammarians) est similium similis declinatio.’

In that bastard interpretation ex ratione legis, which is styled extensive, the law is applied to a case which it clearly omits, because the omitted case fails within its principle. In that spurious interpretation ex ratione legis, which is styled restrictive, the law is not applied to a case which it certainly includes, because the case, which is included by its actual provisions, is not embraced by the general design of the lawgiver.

By Grotius, the term ‘æquitas’ has also been applied to this last-mentioned species of pretended interpretation or construction. Or, according to Grotius, a law is also interpreted agreeably to the demands of Equity, when it is not applied to a case which it actually includes, but which (looking at its purpose) its provisions should not embrace. Now the term Equity as thus applied, hardly imports uniformity or universality. But still it imports the consistency which is implied in uniformity, and which is the ground of the so-called extensive interpretation ex rations legis.

By the so-called extensive interpretation ex ratione legis, the provisions of the law are extended agreeably to its principle. Why? Because it is presumed that its maker must have wished to be consistent with himself. And, for precisely the same reason, the provisions of the law are restricted, agreeably to its principle, where its provisions and principle positively conflict. In either case, it is presumed that the author of the law must have wished to be consistent with himself; and the 580defect or incoherency of his specific and proximate intention is accordingly supplied or corrected from his general and remote design. But the term ‘equity,’ as applied to restrictive interpretation, certainly deflects considerably from its primary meaning. It scarcely imports uniformity; although it imports the consistency (—the harmony or elegantia) which uniformity necessarily implies.

By the ancient writers, ‘æquitas’ (I believe) is never applied to restrictive interpretation. The ‘æquitas’ of Cicero and the Classical Jurists (when they mean by æquitas, interpretation or construction) is the so-called extensive interpretation ex ratione legis of modern writers upon Jurisprudence; the ‘æquitas, quæ paribus in causis paria jura desiderat.’

It may indeed be doubted (as I shall shew in the proper place), whether the so-called interpretation, which restricts the operation of statutes, was permitted by the Roman Law, or ought to be permitted by any.

It may seem, at first sight, that the pretended interpretation which extends, and the pretended interpretation which restricts are nearly alike. For, in either case, the specific intentions, which the provisions of the law evince, are amended by the general design which predominated in the mind of its author.

But (as I shall endeavour to shew in the proper place) the consequences of the former and the consequences of the latter are widely different. Defects in the provisions of a law may be supplied from its manifest reason, with little or no inconvenience. But if judges might abrogate laws, wholly or in part, whenever their actual provisions were not consistent with their grounds, all statute laws would become uncertain, and the cases which they include would be abandoned to the arbitrium of the tribunals: ‘Cessante ratione legis cessat lex ipsa,’ is a maxim which sounds well, but which tends directly to tyranny.

Equity as meaning judicial impartiality.

Secondly:) Equity often signifies judicial impartiality: That virtue which is practised by judges, when they administer the law, agreeably to its spirit or purport, uninfluenced by extrinsic considerations.

In this sense, Equity has been defined by many jurists, ‘The application of Statute Law to the given case, agreeably to the specific intention or the general design of the legislator.’ To abide by the grammatical sense of the legislator’s words, as evidenced by clear marks, is to administer ‘summum jus,’ and if such administration be callida rather than asinine, if it proceed from a mischievous intent rather than from sincere error, the 581judge who so administers the law is guilty of ‘summa injuria.’ ‘Æquitas nihil est (says a celebrated modem jurist) quam benigna et humana juris scripti interpretatio, non ex verbis, sed à mente legislatoris facta.’ ‘Benignius (say the Pandects) leges interpretandæ sunt, quo voluntas earum conservetur.’ In which definition and precept, ‘Equity’ and ‘Benignity’ would seem to be merely synonymous with ‘sincerity’ and ‘impartiality.’ The judge is admonished to apply the law agreeably to the specific intention or general design of the legislator.

Equity as meaning arbitrium.

Thirdly:) Taken in the significations which I have now considered, Equity means something determinate and precise. But, frequently, it signifies nothing more than the arbitrary pleasure of the judge, disguised with a name which imports praise, and which therefore is spacious and captivating. Equity, as defined by Cicero and others, is nothing more than the mere arbitrium of the judge, or is nothing more than the arbitrium of the judge as determined by narrow considerations of particular good and evil.

According to some, it is the office of Equity (meaning the Equity of Judges as exercising their judicial functions) to correct the particular evils which flow from the generality of the Law. ‘Æquitas (says Cicero in precisely the same spirit) est laxamentum juris.’ And here I may remark, that if the general rule be good in the main, the equity which affects to correct its particular evil consequences is clearly mischievous. It is hardly possible to imagine a case, wherein the application of a general rule is not productive of some consequence which a good-natured judge would wish to avert. So that if it were competent to the judge to apply or dispense with rules, agreeably to his notions of particular consequences, there would be no law to which expectations could be accommodated, and by which conduct could be guided.

Where Rules are bad (and the Legislature is incapable or supine) it is indeed expedient (as I shall shew in a future Lecture) that the judge should do the business of the supine or incapable legislature, and abrogate or amend the pernicious or defective law. But to abrogate or amend a law directly or indirectly, is widely different from the Equity which allows the law to remain, and simply dispenses with it in specific cases. By abolishing or amending the law once for all, partial evil may be inflicted. But the bad law is itself removed, and a good rule of conduct is substituted in its stead. The Equity which dispenses with the law in particular instances, leaves 582the standing nuisance untouched, and renders all Law utterly uncertain.

The evils of the Equity which I have now described are not badly put in the following passage: which I take from a tractate, or dissertation, by a certain laudatus but somewhat obscure writer, ‘pro summo jure contra æquitatis defensores.’

‘Non sunt illæ injuriæ, quas subtilitatis studium et observatio juris introduxit, tam lamentabiles quam illi dolores quos parit æquitas. Est longe melius unum quandoque aut alterum lædi, quam fortunas hominum à solâ æquitate et arbitrio judicis, seu, ut rectius dicam, à fato dependere. Quis volubilem adeo et incertam æquitatem ut juris justitiæque normam agnoscet? Admissâ hac justi normâ merito conqueri possumus, leges habere cereum nasum, et quamcunque in partem inflecti posse.’

Equity, as meaning standard, legislative (or other ethical) principles.

Fourthly:) I remarked in a former Lecture that the jus naturale or gentium of the classical jurists and the Law Natural of modern writers on jurisprudence, often mean nothing more than that standard to which, in the opinion of the speaker, law should conform.

The same may be said of æquitas, or naturalis æquitas.

In this sense it is said that equity is the spirit of laws: or (as the French have it) ‘L’équité est l’esprit do nos lois.’ In this sense of the term, writers often talk of an Æqtitas legislatoria, by which, if they mean anything distinct, they must mean general utility. In this sense, Æquitas is reckoned by Cicero amongst the sources of Law; which is obviously absurd, though æquitas, in the sense here used, may be one of the inducements which lead to the enactment of a law. He enumerates the following as the sources of the Roman law: Leges, Senatus-consulta, res judicatæ (by this he means law established by specific decisions), juris-peritorum auctoritas edicta magistratuum, mos or customary law, and lastly a certain æquitas; by which it is manifest that he cannot mean anything more than what I have just expressed. In the same vague sense as meaning utility, or any standard whatever, innovating judges (whether Prætors, Chancellors, or Chief Justices) have generally applied the term ‘equity’ or ‘equitable’ to the new rules which they have ventured to introduce.

Equity, as meaning performance of imperfect obligations.

Fifthly) and lastly, Equity is often synonymous with the performance of imperfect obligations.⁴⁷ An equitable or just man is a man who, though not compelled by the legal sanction, performs the obligations imposed by the moral and religious 583sanctions. As meaning Morality.In like manner equity is often used as synonymous with morality.⁴⁸ Whether with positive morality, or with morality as it ought to be, is generally left undetermined; for the notions of the ancients seem to have been perfectly vague as to the bounds which separate laws from morality, or positive law and positive morality from the principles of legislation and deontology. Æquitas is often spoken of as synonymous with honestas. Jus gentium and naturale often have the same meaning. They denote morality, I believe positive morality, as distinguished from positive law.

Notes.

Origin of application of term to Equity as meaning Law.

The term ‘equity,’ as meaning a portion of positive law, seems to be equivalent to impartiality or equality:

E.g. Older Jus gentium.

Again: Jus prætorium, either as having borrowed largely from that jus gentium, or as being itself of a more equal and impartial character than the jus civile: e.g. Giving rights to strangers, persons in potestate, etc.

Again: Expected of Prætors and other legislating magistrates, that their law should be æquum, et non ambitiose factum. Thence, applied to any law which any one wished to commend; especially by innovating judges seeking to commend to others their innovations.

Equity,—not the name of jus prætorium, but the law itself—said to arise from the suggestions of the personified abstraction styled ‘equity.’

Seems, in England, to be the name of the law. The law would be called better, ‘Chancery Law.’ Circumlocutions for Equity Law.

[beginning of lecture 34]