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EQUITY (Lat. aequitas)

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Originally appearing in Volume V09, Page 727 of the 1911 Encyclopedia Britannica.
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EQUITY (See also:Lat. aequitas) , a See also:term which in its most See also:general sense means equality or See also:justice; in its most technical sense it means a See also:system of See also:law or a See also:body of connected legal principles, which have superseded or supplemented the See also:common law on the ground of their See also:intrinsic superiority. See also:Aristotle (See also:Ethics, bk. v. c. 1o) defines equity as a better sort of justice, which corrects legal justice where the latter errs through being expressed in a universal See also:form and not taking See also:account of particular cases. When the law speaks universally, and something happers which is not according to the common course of events, it is right that the law should be modified in its application to that particular See also:case, as the lawgiver himself would have done, if the case had been See also:present to his mind. Accordingly the equitable See also:man (7rleuols) is he who does not push the law to its extreme, but, having legal justice on his See also:side, is disposed to make allowances. Equity as thus described would correspond rather to the judicial discretion which modifies the See also:administration of the law than to the antagonistic system which claims to supersede the law. The See also:part played by equity in the development of law is admirably illustrated in the well-known See also:work of See also:Sir See also:Henry See also:Maine on See also:Ancient Law. See also:Positive law, at least in progressive See also:societies, is constantly tending to fall behind public See also:opinion, and the expedients adopted for bringing it into See also:harmony therewith are three, viz. legal See also:fictions, equity and statutory legislation. Equity here is defined to mean " any body of rules existing by the side of the See also:original See also:civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a See also:superior sanctity inherent in those principles." It is thus different from legal fiction, by which a new See also:rule is introduced surreptitiously,and under the pretence that no See also:change has been made in the law, and from statutory legislation, in which the obligatory force of the rule is not supposed to depend upon its intrinsic fitness. The source of See also:Roman equity was the fertile theory of natural law, or the law common to all nations. Even in the Institutes of Justinian the distinction is carefully See also:drawn in the See also:laws of a See also:country between those which are See also:peculiar to itself and those which natural See also:reason appoints for all mankind. The connexion in Roman law between the ideas of equity, nature, natural law and the law common to all nations, and the See also:influence of the Stoical See also:philosophy on their development, are fully discussed in the third See also:chapter of the work we have referred to.

The agency by which these principles were introduced was the edicts of the See also:

praetor, an See also:annual See also:proclamation setting forth the manner in which the See also:magistrate intended to administer the law during his See also:year of See also:office. Each successive praetor adopted the See also:edict of his predecessor, and added new equitable rules of his own, until the further growth of the irregular See also:code was stopped by the praetor Salvius Julianus in the reign of See also:Hadrian. The See also:place of the praetor was occupied in See also:English See also:jurisprudence by the See also:lord high See also:chancellor. The real beginning of English equity is to be found in the See also:custom of handing over to that officer, for See also:adjudication, the complaints which were addressed to the See also:king, praying for remedies beyond the reach of the common law. Over and above the authority delegated to the See also:ordinary See also:councils or courts, a reserve of judicial See also:power was believed to reside in the king, which was invoked as of See also:grace by the suitors who could not obtain See also:relief from any inferior tribunal. To the chancellor, as already the See also:head of the judicial system, these petitions were referred, although he was not at first the only officer through whom the See also:prerogative of grace was administered. In the reign of See also:Edward III. the equitable See also:jurisdiction of the See also:court appears to have been established. Its constitutional origin was analogous to that of the See also:star chamber and the court of See also:requests. The latter, in fact, was a See also:minor court of equity attached to the lord privy See also:seal as the court of See also:chancery was to the chancellor. The successful See also:assumption of extraordinary or equitable jurisdiction by the chancellor caused similar pretensions to be made by other See also:officers and courts. " Not only the court of See also:exchequer, whose functions were in a peculiar manner connected with royal authority, but the counties See also:palatine of See also:Chester, See also:Lancaster and See also:Durham, the court of See also:great session in See also:Wales, the See also:universities, the See also:city of See also:London, the Cinque Ports and other places silently assumed extraordinary jurisdiction similar to that exercised in the court of chancery." Even private persons, lords and ladies, affected to establish in their honours courts of equity. English equity has one marked See also:historical peculiarity, viz. that it established itself in' a set of See also:independent tribunals which remained in See also:standing contrast to the ordinary courts for many See also:hundred years.

In Roman law the See also:

judge gave the preference to the equitable rule; in English law the equitable rule was enforced by a distinct set of See also:judges. One cause of this separation was the rigid adherence to precedent on the part of the common law courts. Another was the See also:jealousy prevailing in See also:England against the principles of the Roman law on which English equity to a large extent was founded. When a case of prerogative was referred to the chancellor in the reign of Edward III., he was required to See also:grant such remedy as should be consonant to honesty (honestas). And honesty, See also:conscience and equity were said to be the fundamental principles of the court. The See also:early chancellors were ecclesiastics, and under their influence not only moral principles, where these were not regarded by the common law, but also the equitable principles of the Roman law were introduced into English jurisprudence. Between this point and the See also:time when equity became settled as a portion of the legal system, having fixed principles of its own, various views of its nature seem to have prevailed. For a See also:long time it was thought that precedents could have no place in equity, inasmuch as it professed in each case to do that which was just; and we find this view maintained by common lawyers after it had been abandoned by the professors of equity them-selves. G. See also:Spence, in his See also:book on the Equitable Jurisdiction of the Court of Chancery, quotes a case in the reign of See also:Charles II., in which See also:chief justice See also:Vaughan said: " I wonder to hear of citing of precedents in See also:matter of equity, for if there be equity in a case, that equity is an universal truth, and there can be no precedent in it; so that in any precedent that can be produced, if it be the same with this case, the reason and equity is the same in itself ; and if the precedent be not the same case with this it is not to be cited." But the lord keeper Bridgeman answered: " Certainly precedents are very necessary and useful to us, for in them we may find the reasons of the equity to See also:guide us, and besides the authority of those who made them is much to be regarded. We shall suppose they did it upon great See also:consideration and weighing of the matter, and it would be very See also:strange and very See also:ill if we should disturb and set aside what has been the course for a long See also:series of times and ages." See also:Selden's description is well known: " Equity is a roguish thing. 'Tis all one as if they should make the See also:standard for measure the chancellor's See also:foot." Lord See also:Nottingham in 1676 reconciled the ancient theory and the established practice by saying that the conscience which guided the court was not the natural conscience of the man, but the civil and See also:political See also:con-See also:science of the judge.

The same tendency of equity to See also:

settle into a system of law is seen in the recognition of its limits—in the fact that it did not See also:attempt in all cases to give a remedy when the rule of the common law was contrary to justice. Cases of hardship, which the early chancellors would certainly have relieved, were passed over by later judges, simply because no precedent could be found for their interference. The point at which the introduction of new principles of equity finally stopped is fixed by Sir Henry Maine in the chancellorship of Lord See also:Eldon, who held that the doctrines of the court ought to be as well settled and made as See also:uniform almost as those of the common law. From that time certainly equity, like common law, has professed to take its principles wholly from recorded decisions and See also:statute law. The view (traceable no doubt to the Aristotelian See also:definition) that equity mitigates the hardships of the law where the law errs through being framed in universals, is to be found in some of the earlier writings. Thus in the See also:Doctor and Student it is said: " Law makers take heed to such things as may often come, and not to every particular case, for they could not though they would; therefore, in some cases it is necessary to leave the words of the law and follow that reason and justice requireth, and to that See also:intent equity is ordained, that is to say, to See also:temper and mitigate the rigour of the law." And Lord See also:Ellesmere said: " The cause why there is a chancery is for that men's actions are so See also:divers and See also:infinite that it is impossible to make any general law which shall aptly meet with every particular See also:act and not fail in some circumstances." See also:Modern equity, it need hardly be said, does not profess to soften the rigour of the law, or to correct the errors into which it falls by reason of its generality. To give any account, even in outline, of the subject matter of equity within the necessary limits of this See also:article would be impossible. It will be sufficient to say here that the See also:classification generally adopted by See also:text-writers is based upon the relations of equity to the common law, of which some explanation is given above. Thus equitable jurisdiction is said to be exclusive, concurrent or See also:auxiliary. Equity has exclusive jurisdiction where it recognizes rights which are unknown to the common law. The most important example is See also:trusts. Equity has con-current jurisdiction in cases where the law recognized the right but did not give adequate relief, or did not give relief without circuity of See also:action or some similar inconvenience.

And equity has auxiliary jurisdiction when the machinery of the courts of law was unable to procure the necessary See also:

evidence. " The evils of this See also:double system of judicature," says the See also:report of the judicature See also:commission. (1863–1867), " and the confusion and conflict of jurisdiction to which it has led, have been long known and acknowledged." A partial attempt to meet the difficulty was made by several acts of See also:parliament (passed after the reports of commissions appointed in 185o and 1851), which enabled courts of law and equity both to exercisecertain See also:powers formerly peculiar to one or other of them. A more See also:complete remedy was introduced by the Judicature Act 1873, which consolidated the courts of law and equity, and ordered that law and equity should be administered concurrently according to the rules contained in the 26th See also:section of the act. At the same time many matters of equitable jurisdiction are still See also:left to the chancery See also:division of the High Court in the first instance.

End of Article: EQUITY (Lat. aequitas)

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