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take place, when there exist inequalities, originating in the injustice of a former event.

494. Such remedying of Injustice is a part of the general Duty of Moral Progress, which belongs to States as well as to individuals (475). We have already said, that the Law must perpetually and slowly tend to the Idea of Justice. We now see further the import of this assertion. The Law must tend slowly towards Justice, because the influence of the Facts of History upon existing Rights must always be great and it is not just to disregard this influence. The influence itself is, however, weakened by the lapse of time, and the intervention of new events. It is the Duty of men to act justly, in these new events: it is the Duty of States, to make just Laws, in reference to the new aspect which those new events give to history. And Justice, thus, and History as regulated by Duty, constantly, but slowly, mould each other.

495. Again, the Law must tend perpetually towards Justice: that is, its progress in that direction can never be looked upon as terminated. For the influence of the past Facts of History upon Law, though constantly wearing out, can never be quite obliterated. Even if, in all present events, men did act justly and legislate justly, still there would remain traces of the ancient order of things. For instance, the distribution of landed property at present must always continue to depend upon the original and ancient migrations of mankind, by which each Nation became possessed of its present territory; and upon many succeeding events; some of which have been acts of Injustice. The administration of Law, and the progress of Legislation, can never obliterate the effect of these bygone arbitrary and unjust acts; while new arbitrary and unjust acts are constantly happening. Thus Law, who must constantly travel onwards towards Justice, must always have some part

of her journey still to perform. Or to use another image: the pure waters of Justice are constantly poured into the mingled stream of the Law, in order to purify it; but we cannot hope to see the time when all the impurities which the latter has collected, in its passage through the realms of History, shall have disappeared; and the clear united current shall flow on indistinguishable.

And thus both the maxims which have been stated retain their truth and validity. Right cannot be founded on Injustice: such is the negative maxim which serves to define the Idea of Justice. Justice assigns Rights according to existing Conditions: such is the positive maxim which makes Justice applicable to Facts.

We have taken the exemplification of the conditions of Justice from imaginary relations between States, because in such a case there is not, as in all transactions between individuals there is, a mixture of the considerations of Law, with the question of Justice. But still Justice, as distinguished from Law, is to be considered in questions between individuals. The term employed to designate Justice in this point of view, is Equity.

CHAPTER XXII.

EQUITY.

496. EQUITY derives its Name from Equality; and in the Conception, also, is understood to imply, in some way, equal advantages assigned to the parties contemplated. In this sense, attempts have been made, at various periods, to introduce the Conception of Equity, as explanatory of, or supplementary to, the Conception of Justice. It will be found that this Inde

of conceiving Equity, has led to some maxims which are worthy of notice.

Aristotle says that Inequality is one kind of Injustice; and that Injustice is to be remedied by Equality;-by Equality of Ratios, in Distributive Justice;-by Equality of Shares, in Corrective Justice. Thus Distributive Justice makes A's share be to B's share as A's right is to B's right: Corrective Justice takes from A, the wrong doer, and gives to B, who is wronged. But this view of the equality which constitutes Justice is partial and fanciful: it cannot be extended to cases in general. Still, there is a notion of Equality, as a kind of Justice. Cicero sayst, "Jus constat ex his partibus, Natura, Lege, Consuetudine, Judicato, Bono et Equo, Pacto." This expression Bono et Equo was familiarly used in this sense by the Roman Lawyers. Thus Ulpiant, "Jus est Ars Boni et Equi." And this notion of equal justice has been carried into some detail. Thus Grotius makes Equality the Rule of Contracts§; they require equality of knowledge; equality of liberty; and, within certain limits, equality of advantage.

497. Justice and Equity, originally conceived as identical, in the course of time were separated; for Justice, in its administration, was necessarily fixed and limited by Laws and Rules; while Equity was conceived as not so limited. And as Laws and Rules, however much meant to be just, and however carefully constructed, will yet press upon individual cases in a way which seems hard; Equity was conceived as that kind of Justice which was not thus bound by Laws and Rules, and which was disposed to relieve such hardships. The Virtue which exists

*Eth. Nich. v. 2.

+ Ad Herenn. 11. 13. Jus consists of these portions; Natural Law, Positive Law, Custom, Decisions, Equity, Contract.

+ Dig. 1. i. 1.

§ B. et P. 11. xii. 8.

in such a disposition, is termed by Aristotle*, 'ETLELKÉLA ; and he defines it to be, The Correction of the Law, where it is defective by reason of its universality. The Law, he says, is necessarily universal in its expressions: but some things cannot rightly be expressed universally. There is a defect, not in the Law, nor in the Lawgivers; but in the nature of things. And the ISIKES, or equitable, is opposed to the apɩßodixálov, or rigidly just. The same opposition is repeatedly recognized in the Roman Law. Thust, "Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris rationem." And in another placet, "Hæc Equitas suggerit, etsi jure deficiamur." And the Prætor's judicial office was sometimes described as if its object were to administer Equity in this sense§: "Jus Prætorium est quod Prætores introduxerunt, adjuvandi, vel supplendi, vel corrigendi juris civilis gratiâ, propter utilitatem publicam." Similar functions have often been ascribed to the Jurisdiction of the Court of Chancery in England. Thus Bacon, on occasion of assuming the office of Chancellor, says, "Chancery is ordained to supply the Law, not to subvert the Law:" and Chancellor Finch says, that the nature of Equity is to amplify, enlarge, and add to the letter of the Law. This has sometimes been stated by saying, that Equity decides¶ "de rebus quas Lex non exacté definit, sed arbitrio boni viri permittit."

*Eth. Nich. v. 10.

+ Codex. III. 1. 8. It has been thought good that regard be had to Justice and Equity, rather than to strict Rights.

Dig. xxx. iii. 2. 5. This is suggested by Equity, although Law fails us.

§ Dig. 1. 1. 7. Prætors' Law is that which the Prætors have introduced, for the public good, for the sake of helping out, supplementing, and correcting the Civil Law.

Bacon's Works, iv. 488.

Grot. De Equitate. Concerning things which the Law does not exactly define, but leaves tot he discretion of a good man

498. But this description of Equity is too vague to be applicable; and has not been really accepted and acted upon in the administration of Justice, either in Rome or in England. For a Justice, administered, not according to Rules, but according to the immediate aspect of each case, would be deficient in the first requisite of Justice, that of being consistent with itself. We have already said (339), that Rules are necessary in Morality, to subdue the temptations of special cases; they are especially necessary as regards Justice, to correct the delusive aspect of particular cases. To leave the decision of cases to the conscience of the Judge, however wise and good, would lead to those arbitrary decisions which Justice especially abhors. In this view, Selden's condemnation of Equity is deserved*; "For Law we have a measure, and we know what to trust to. Equity is according to the Conscience of him who is Chancellor ; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be !" Since Morality is governed by fixed Rules, Equity, which is a part of Morality, must also have its fixed Rules. And as the Rules of Law are the foundations of Justice, the Rules of Equity cannot be in general inconsistent with those of Law.

499. Accordingly, the Prætor's power did not extend to the overthrow or disregard of the written Law. When the law was applicable, the Prætor was to stand by it†; and we find such remarks as this‡: "Quod quidem perquam durum est; sed ita lex scripta est.' Nor does a Court of Equity in England decide differently from a Court of Law, ex*Table Talk.

† Story. Commentaries on Equity, p. 6.

Dig. XL. ix. 12. 1. This is very hard: but this is the written law.

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