# 1911 Encyclopædia Britannica/Equity

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​EQUITY (Lat. aequitas), a term which in its most general sense means equality or justice; in its most technical sense it means a system of law or a body of connected legal principles, which have superseded or supplemented the common law on the ground of their intrinsic superiority. Aristotle (Ethics, bk. v. c. 10) defines equity as a better sort of justice, which corrects legal justice where the latter errs through being expressed in a universal form and not taking account of particular cases. When the law speaks universally, and something happens 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 case, as the lawgiver himself would have done, if the case had been present to his mind. Accordingly the equitable man (ἐπιεικής) is he who does not push the law to its extreme, but, having legal justice on his side, is disposed to make allowances. Equity as thus described would correspond rather to the judicial discretion which modifies the administration of the law than to the antagonistic system which claims to supersede the law.
The part played by equity in the development of law is admirably illustrated in the well-known work of Sir Henry Maine on Ancient Law. Positive law, at least in progressive societies, is constantly tending to fall behind public opinion, and the expedients adopted for bringing it into harmony therewith are three, viz. legal fictions, equity and statutory legislation. Equity here is defined to mean “any body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles.” It is thus different from legal fiction, by which a new rule is introduced surreptitiously, and under the pretence that no 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 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 drawn in the laws of a country between those which are peculiar to itself and those which natural 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 influence of the Stoical philosophy on their development, are fully discussed in the third chapter of the work we have referred to. The agency by which these principles were introduced was the edicts of the praetor, an annual proclamation setting forth the manner in which the magistrate intended to administer the law during his year of office. Each successive praetor adopted the edict of his predecessor, and added new equitable rules of his own, until the further growth of the irregular code was stopped by the praetor Salvius Julianus in the reign of Hadrian.
The place of the praetor was occupied in English jurisprudence by the lord high chancellor. The real beginning of English equity is to be found in the custom of handing over to that officer, for adjudication, the complaints which were addressed to the king, praying for remedies beyond the reach of the common law. Over and above the authority delegated to the ordinary councils or courts, a reserve of judicial power was believed to reside in the king, which was invoked as of grace by the suitors who could not obtain relief from any inferior tribunal. To the chancellor, as already the head of the judicial system, these petitions were referred, although he was not at first the only officer through whom the prerogative of grace was administered. In the reign of Edward III. the equitable jurisdiction of the court appears to have been established. Its constitutional origin was analogous to that of the star chamber and the court of requests. The latter, in fact, was a minor court of equity attached to the lord privy seal as the court of chancery was to the chancellor. The successful assumption of extraordinary or equitable jurisdiction by the chancellor caused similar pretensions to be made by other officers and courts. “Not only the court of exchequer, whose functions were in a peculiar manner connected with royal authority, but the counties palatine of Chester, Lancaster and Durham, the court of great session in Wales, the universities, the city of 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 historical peculiarity, viz. that it established itself in a set of independent tribunals which remained in standing contrast to the ordinary courts for many hundred years. In Roman law the judge gave the preference to the equitable rule; in English law the equitable rule was enforced by a distinct set of judges. One cause of this separation was the rigid adherence to precedent on the part of the common law courts. Another was the jealousy prevailing in 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 grant such remedy as should be consonant to honesty (honestas). And honesty, conscience and equity were said to be the fundamental principles of the court. The 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 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 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 themselves. G. Spence, in his book on the Equitable Jurisdiction of ​the Court of Chancery, quotes a case in the reign of Charles II., in which chief justice Vaughan said:
“I wonder to hear of citing of precedents in 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 guide us, and besides the authority of those who made them is much to be regarded. We shall suppose they did it upon great consideration and weighing of the matter, and it would be very strange and very ill if we should disturb and set aside what has been the course for a long series of times and ages.”
Selden’s description is well known: “Equity is a roguish thing. ’Tis all one as if they should make the standard for measure the chancellor’s foot.” Lord 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 political conscience of the judge. The same tendency of equity to settle into a system of law is seen in the recognition of its limits—in the fact that it did not 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 Eldon, who held that the doctrines of the court ought to be as well settled and made as 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 statute law. The view (traceable no doubt to the Aristotelian 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 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 intent equity is ordained, that is to say, to temper and mitigate the rigour of the law.”
And Lord Ellesmere said:
“The cause why there is a chancery is for that men’s actions are so divers and infinite that it is impossible to make any general law which shall aptly meet with every particular act and not fail in some circumstances.”
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 article would be impossible. It will be sufficient to say here that the classification generally adopted by 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 auxiliary. Equity has exclusive jurisdiction where it recognizes rights which are unknown to the common law. The most important example is trusts. Equity has concurrent jurisdiction in cases where the law recognized the right but did not give adequate relief, or did not give relief without circuity of action or some similar inconvenience. And equity has auxiliary jurisdiction when the machinery of the courts of law was unable to procure the necessary evidence.
“The evils of this double system of judicature,” says the report of the judicature 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 parliament (passed after the reports of commissions appointed in 1850 and 1851), which enabled courts of law and equity both to exercise certain powers formerly peculiar to one or other of them. A more 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 section of the act. At the same time many matters of equitable jurisdiction are still left to the chancery division of the High Court in the first instance. (See Chancery.)
Authorities.—The principles of equity as set out by the following writers may be consulted: J. Story, J. W. Smith, H. A. Smith and W. Ashburner; and for the history see G. Spence, The Equitable Jurisdiction of the Court of Chancery (2 vols., 1846–1849); D. M. Kerly, Historical Sketch of the Equitable Jurisdiction of the Court of Chancery (1890).