Home >> Cyclopedia Of Knowledge >> England And to Germanic Confederation >> Equity_P1


law, according, courts, court, administered, rule and foot

Page: 1 2 3 4 5 6

EQUITY, according to the definition given by Aristotle, is " the rectification of the law, when, by reason of its univer sality, it is deficient ; for' this is the rea son 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 de cision; for of the indefinite the rule also is indefinite : as among Lesbian builders the rule is leaden, for the rule is altered to suit 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 Black stone, " 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 is synony mous with justice; in that, to the true and siund interpretation of the rule." According to Grotius, equity is the cor rection of that wherein the law, by reason of its generality, is deficient.

It is probable that the department of law called equity in England once de served the humorous description given by Selden in his Table Talk: " Equity in law is the same that spirit is in reli gion, what every one pleases to make it : sometimes they go according to con science, sometimes according to law, some 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 chancel lor'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." 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 prin ciples almost as fixed have been framed and established in our courts of equity as in our courts of law. New cases do in deed arise, but they are decided according to these rules and principles, and not ac cording to the notions of the judge as to what may be reasonable or just in the par ticular 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 know o, however ill-founded the first resolution may have been.

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 doc trine 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 construc tion 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.

It is hardly possible to define Equity as now administered in England and Ire land, or to make it intelligible otherwise than by a minute enumeration of the matters cognizable in the courts in which it is administered in its restrained and qualified sense.

The remedies for the redress of wrongs and for the enforcement of rights are dis tinguished into two classes, those which are administered in courts of law, and those which are administered in courts of equity. Accordingly rights may be distri buted 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 cog nizance and in its mode of procedure and remedies.

Page: 1 2 3 4 5 6