Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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EQUITY

II.27.1

EQUITY, according to the definition given by Aristotle, is "the rectification of the law, when, by reason of its universality, it is deficient; for this is the reason that all things are not determined by law, because it is impossible that a law should be enacted concerning some things, so that there is need of a decree or decision; for of the indefinite, the rule also is indefinite; as among Lesbian builders the rule is leaden, for the rule is altered to suit the figure of the stone, and is not fixed, and so is a decree or decision to suit the circumstances." (Ethics, b. v., c. x., Oxford trans.) "Equity," says Blackstone, "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 respect, equity it synonymous with justice; in that, to the true and sound interpretation of the rule." According to Grotius, equity is the correction of that wherein the law, by reason of its generally, is deficient.

II.27.2

—It is probable that the department of law called equity in England once deserved the humorous description given by Selden in his "Table Talk" "Equity in law is the same that spirit is in religion, what every one pleases to make it: sometimes they go according to conscience, sometimes they go according to conscience, sometimes according to law, sometimes according to the rule of court. Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. It is all one as if they should make the standard for the measure we call a foot a chancellor's foot, what an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot: it is the same thing in the chancellor's conscience."

II.27.3

—This uncertainty has, however, long ceased in that branch of our law which is expressed by the term equity, and, from successive decisions, rules and principles almost as fixed have been framed and established in our courts of equity as in our courts of law. New cases do indeed arise, but they are decided according to these rules and principles, and not according to the notions of the judge as to what may be reasonable or just in the prticular case. Nothing in fact is more common than to hear the chancellor say, that whatever may be his own opinion, he is bound by the authorities, that is, by the decisions of his predecessors in office and those of the other judges in equity; that he will not shake any settled rule of equity, it being for the common good that these should be certain and known, however ill-founded the first resolution may have been.

II.27.4

—In its enlarged sense, equity answers precisely to the definition of justice, or natural law (as it is called), as given in the "Pandects" (i., tit. 1, s. 10, 11); and it is remarkable that subsequent writers on this so-called natural law, and also the authors of modern treatises on the doctrine of equity, as administered in the English courts, have, with scarcely any exception, cited the above passage from Aristotle as a definition of equity in our peculiar sense of a separate jurisdiction. But according to this general definition every court is a court of equity, of which a familiar instance occurs in the construction of statutes, which the judges of the courts of common law may, if they please, interpret according to the spirit, or, as it is called, the equity, not the strict letter.

II.27.5

—It is hardly possible to define equity as now administered, or to make at intelligible otherwise than by an enumeration of the matters cognizable in the courts in which it is administered in its restrained and qualified sense.

II.27.6

—The remedies for the redress of wrongs and for the enforcement of rights are distinguished into two classes, those which are administered in courts of law, and those which are administered in courts of equity. Accordingly, rights may be distributed into legal and equitable. Equity jurisdiction may, therefore, properly be defined as that department of law which is administered by a court of equity as distinguished from a court of law, from which a court of equity differs mainly in the subject matters of which it takes cognizance and in its mode of procedure and remedies.

II.27.7

—Courts of common law proceed by certain prescribed forms of action alone, and give relief only according to the kinds of actions, by a general and unqualified judgment for the plaintiff or the defendant. There are many cases, however, in which a simple judgment for either party, without qualifications or conditions, will not do entire justice. Some modifications of the rights of both parties may be required; some restraints on one side or the other, or perhaps on both; some qualifications or conditions, present or future, temporary or permanent, ought to be annexed to the exercise of rights or the redress of injuries. To accomplish such objects the courts of law have no machinery whatever according to their present constitution they can only adjudicate by a simple judgment between the parties. Courts of equity, however, are not so restrained; they adjudicate by decree pronounced upon a statement of his case by the plaintiff, which he makes by a writing called a bill, and the written answer of the defendant, which is given in upon oath, and the evidence of witnesses, together, if necessary with the evidence of all parties, also given in writing and upon oath. These decrees are so adjusted as to meet all the exigencies of the case, and they vary, qualify, restrain and model the remedy so as to suit it to mutual and adverse claims, and the real and substantial rights of all the parties, so far as such rights are acknowledged by the rules of equity.

II.27.8

—The courts of equity bring before them all the parties interested in the subject matter of the suit, and adjust the rights of all, however numerous; whereas courts of law are compelled by their constitution to limit their inquiry to the litigating parties, although other persons may be interested; that is, they give a complete remedy in damages or otherwise for the particular wrong in question as between the parties to the action, though such remedy is in many cases an incomplete adjudication upon the general rights of the parties to the action, and fails altogether as to other persons, not parties to the action who yet may be interested in the result or in the subject matter in dispute.

II.27.9

—The description of a court of equity, as given by Mr Justice Story, is this. A court of equity has jurisdiction in cases where a plain, adequate and complete remedy can not be had in the common law courts. The remedy must be plain, for if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate, for if at law it fall short of what the party is entitled to that founds a jurisdiction in equity; and it must be complete that is, it must attain the full end and justice of the case; it must reach the whole mischief and secure the whole right of the party present and future, otherwise equity will interpose and give relief. The jurisdiction of a court of equity is sometimes concurrent with the jurisdiction of a court of law, sometimes assistant to it, and sometimes exclusive. It exercises concurrent jurisdiction in cases where the rights are purely of a legal nature, but where other and more efficient aid is required than a court of law can afford. In some of these cases courts of law formerly refused all redress, but now will grant it. For strict law comprehending established rules, and the jurisdiction of equity being called into action when the purposes of justice rendered an exception to those rules necessary, successive exceptions on the same grounds became the foundation of a general principle, and could no longer be considered as a singular interposition. Thus law and equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule; a great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next. (Prof. Millar. View of the English Government.) But the jurisdiction having been once acquired at a time when there was no such redress at law, it is still retained by the courts of equity.

II.27.10

—The most common exercise of the concurrent jurisdiction is in cases of account, accident, dower, fraud, mistake, partnership and partition. In many cases which fall under these heads, and especially in some cases of fraud, mistake and accident, courts of law can not and do not afford any redress; in others they do, but not in so complete a manner as a court of equity.

II.27.11

—A court of equity is also assistant to the jurisdiction of the courts of law in cases where the courts of law have no like authority. It will remove legal impediments to the fair decision of a question depending at law, as by restraining a party from improperly setting up, at a trial, some title or claim which would prevent the fair decision of the question in dispute; by compelling him to discover, upon his own oath facts which are material to the right of the other party, but which a court of law can not compel him to disclose; by perpetuating, that is, by taking in writing and keeping in its custody, the testimony of witnesses, which is in danger of being lost before the matter can be tried: and by providing for the safety of property in dispute pending litigation. It will a so counteract and control fraudulent judgments, by restraining the parties from insisting upon them.

II.27.12

—The exclusive jurisdiction of a court of equity is chiefly exercised in cases of merely equitable rights, that is, such rights as are not recognized in courts of law. Most cases of trust and confidence fall under this head. This exclusive jurisdiction is exercised in granting injunctions to prevent waste or irreparable injury; to secure a settled right, or to prevent vexatious litigation; in appointing receivers of property which is in danger of being misapplied; in compelling the surrender of securities improperly obtained; in preventing a party from leaving the country in order to avoid a suit; in restraining any undue exercise of a legal right; in enforcing specific performance of contracts; in supplying the defective execution of instruments, and reforming, that is, correcting and altering, them according to the real intention of the parties, when such intention can be satisfactorily proved; and in granting relief in cases where deeds and securities have been lost.

II.27.13

—Various opinions have been expressed upon the question whether it would or would not be best to administer justice altogether in one court or in one class of courts, without any separation or distinction of suits, or of the forms or modes of procedure and relief. Lord Bacon, upon more than one occasion, has expressed his decided opinion that a separation of the administration of equity from that of the common law is wise and convenient. "All nations," says he, "have equity, but some have law and equity mixed in the same court, which is worse, and some have it distinguished in several courts, which is better;" and again "In some states, that jurisdiction which decrees according to equity and moral right, and that which decrees according to strict right, is committed to the same court; in others, they are committed to different courts. We entirely opine for the separation of the courts; for the distinction of the cases will not long be attended to if the jurisdictions meet in the same person; and the will of the judge will then master the law."

II.27.14

—Lord Hardwicke held the same opinion. Lord Mansfield, it is to be presumed, though otherwise, for he endeavored to introduce equitable doctrines into courts of law His successor, Lord Kenyon, made use of these expressions. "If it had fallen to my lot to form a system of jurisprudence, whether or not I should have though it advisable to establish different courts, with different jurisdictions, and governed by different rules, it is not necessary to slay; but influenced as I am by certain prejudices that have become inveterate with those who comply with the systems they find established I find that in these courts proceeding by different rules a certain combined system of jurisprudence has been framed most beneficial to the people of this country, and which I hope I may be indulged in supposing has never yet been equaled in any other country on earth. Our courts of law only consider legal rights; our courts of equity have other rules, by which they sometimes supersede strict legal rules, and in so doing they act most beneficially for the subject." In England the principle of separating jurisdictions has been largely acted upon. She has her courts of equity and law, her bankrupt and insolvent courts, and courts of ecclesiastical and admiralty jurisdiction; indeed until lately her several courts of law had in principle, jurisdiction only over certain specified classes of suits. In countries governed by the civil law, the practice has in general been the other way. But whether the one opinion or the other be most correct in theory, the system adopted by every nation has been mainly influenced by the peculiarities of its own institutions, habits and circumstances, and the original forms of giving redress for wrongs.

II.27.15

—In some of the American states the administration of law and equity is distinct; in others the administration of equity is only partially committed to distinct courts; in a third class the two jurisdictions are vested in one and the same tribunal.

II.27.16

—The English equity has some resemblance to the Roman edictal law, or jus praetorium or honorarium, as it is often called. All the higher Roman magistrates (magistratus majores) had the jus edicendi or authority to promulgate edicta. These magistratus majores were consuls, praetors, curule aediles, and censors. By virtue of this power a magistrate made edicta or orders, either temporary and for particular occasions (edicta repentina); or upon entering on his office he promulgated rules or orders which he would observe in the exercise of his office (edicta perpetua). These edicta were written on a white tablet (album) in black letters; the headings or titles were in red: the alba were placed in the forum, in such a position that they could be read by a stander-by. Those edicta which related to the administration of justice had an important effect onthe Roman law; and especially the praetria edicta and those of the curule aediles. That branch of law which was founded on the praetorian edicta was designated jus praetorium, or honorarium, because the praetor held one of these offices to which the term honores was applied. The edicta were only in force during the term of office of the magistratus who promulgated them; but his successor adopted many or all of his predecessor's edicta, and hence arose the expression of "transferred edicts" (tralaticia edicta); and thus in the later republic the edicta which had been long established began to exercise an great influence on the law, and particularly the forms of procedure. About the time of Cicero many distinguished jurists began to write treatises on the edictum (libri ad edictum). Under the experors new edicta were rarer, and in the third century of our era they ceased. Under the empire we first find the edicta of the praefectus urbi mentioned; but these must be considered as founded on the imperial authority (majestas principis), and to have resembled the imperial constitutions. Under the reign of Hadrian, a compilation was made by his authority of the edictal rules by the distinguished jurist, Salvious Julianus, in conjunction with Servius Coraelius, which is spoken of under the name of edictum perpetuum. This edictum was arranged under various heads or titles, such at those relating to marriage, tutores, legata (legacies), and so on.

II.27.17

—By the term praetorian edict the Romans meant the edicts of praetor urbanus, who was the chief personage employed in the higher administration of justice under the republic. The edicta which related to peregrini (aliens) were so named after the praetor Peregrinus, and other edicta were called censoria, consularia, aedilicia, etc. Sometimes an edict of importance took its name from the praetor who promulgated it as carbonianum edictum. Sometimes the honorarise actiones, those which the praetor by his edict permitted were named in like manner from the praetor who introduced them. Sometimes an edict had its name from the matter to which it referred. The Romans generally cited the edicta by parts, titles, chapters or clauses of the edictum perpetuum, by naming the initial words, as unde legitimi, and so on; sometimes they are cited by a reference to their contents. Examples of these modes of citing the edictum occur in the titles of the forty-third book of the "Digest." In our own law we refer to certain forms of proceedings and to certain actions in a like way, as when we say quo warranto, quare impedit, and speak of qui tam actions.

II.27.18

—The jus praetorium is defined by Papinian (Dig. i., tit. i., 7) as the law which the praetors introduced for the purpose of aiding, supplying or correcting the law (jus cicile) with a view to the public interest. The edict is called by Marcianus "the living voice of the jus civile," that is, of the Roman law (Dig. i., tit. i., 8.) The praetorian law, as thus formed (jus prœtorium) was a body of law which was distinguished by this name from the jus civile, or the strict law; the opposition resembled that of the English terms equity and law. In its complete and large sense jus civile Romanorum or the law of the Romans, of course comprehended the jus prætorium; but in its narrower sense jus civile was contrasted, as already explained, with the jus prætorium.

II.27.19

—The origin of the Roman edictal law is plainly to be traced to the imperfections of the old jus civile, and to the necessity of gradually modifying law and procedure according to the changing circumstances of the times. It was an easier method of doing this than by direct legislation. Numerous modern treatises contain a view of the origin and nature of the Roman jus praetorium, though on some points there is not complete uniformity of opinion.

II.27.20

—Böcking. Institutionen. vol. i.; Puchta Cursus der Institutionen, vol. i., p. 293; Savigny Geschichte des Röm. Rechts vol. i; Heffter, Die Oeconomie des Edictes, Rhein Mus für Juris., i., p. 51; E. Schrader, Die Prätorischen Edicte der Römer, 1815.

BOHN.

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