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and injustice respecting such actions would be of little importance.

492. But if such violent events have at some time taken place, must their consequences remain unchanged? If calamities have been inflicted by one nation upon another, even as a just punishment; does justice require these inflictions to be perpetuated without limit? If a nation have been enslaved and despoiled, even for their wrongs, may not the time come when they may be restored to freedom and property? We reply, in accordance with what has been said, that in proportion as the traces of the wrong are obliterated in men's minds, Justice will aim at obliterating them in their condition also. The privations and subjection of the subjugated class, so soon as they cease to be looked upon as penal, appear as arbitrary, and therefore unjust. As soon as the inequality appears as an arbitrary one, Justice requires that it shall be removed.

But then, no present inequality can be quite arbitrary, because every actual inequality depends upon the Laws and Habits by which the present is derived from the past; and such Laws and Habits are requisite, in order that there may be, between the present and the past, that connexion which the continuity of the Life of States (475) requires. The Events of History have, at every step, led to present inequalities; to a difference of high and low, rich and poor. Justice does not require that we should abolish all such distinctions; for to do this, would be to abolish Rights, the necessary conditions of Justice. What then is the course which Justice prescribes?

'493. We answer, that Justice requires us to aim constantly to remedy the inequalities which History produces. We do not say that Justice requires us to restore any previous condition which has been unjustly changed, but to remedy the effects of the change. For, in fact, a previous

State of things never can be restored: and when a change takes place, then, after a short time has elapsed, there have grown up, under the new State of things, new Rights, which it would be unjust to annul. What has once happened, can never cease to have happened. In the course of a nation's history, what has been done, cannot be undone. We may do something of an opposite tendency; and when what has been done was unjust, it is just to do something to remedy the injustice. If we are asked whether the consequences of events are to be perpetual; we may answer, that the consequences of events are perpetual; but that the consequence of a second event may counteract those of a former one. And we pronounce that such a second event ought to 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

Even if, in all present

out, can never be quite obliterated. 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.

328

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 mode 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 says, "Jus constat ex his partibus, Natura, Lege, Consuetudine, Judicato, Bono et Æquo, Pacto." This expression Bono et Equo was familiarly used in this sense by the Roman Lawyers. Thus Ulpiant, "Jus est Ars Boni et Æqui." 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.

*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.

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 in such a disposition, is termed by Aristotle*, 'Emiciкéia; 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 ἐπιεικες, or equitable, is opposed to the ἀκριβο dikátor, or rigidly just. The same opposition is repeatedly recognized in the Roman Law. Thus†, "Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris rationem." And in another place‡, "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

*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.

us.

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

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.

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