ETHICAL PRINCIPLE OF EQUITY. 331 



luminaries that from the time of the Norman Conquest this idea 

 bore practical fruit in the law courts. 



Speaking of the twelfth century, Pollock and Maitland* tell 

 us that the King's Court could already do all that equity could 

 then demand. " In the days of Henry II and Henry III the 

 King's Court wields discretionary powers, such as are not at the 

 command of lowlier courts, and the use df these powers is an 

 exhibition of equity. Often on the plea rolls we find it written 

 that some order is made by the counsel of the court (^de consilio 

 curia). It is an order that could not be asked for as a mere 

 matter of strict right; the rigor juris does not dictate it; wouM 

 perhaps refuse it, but it is made in order that the substantial 

 purposes of the law may be accomplished without circuity of 

 action." 



And what we say of England must be repeated of the con- 

 tinent of Europe. We see there how the ethical principle of 

 equity soon became transformed into something like a new code 

 of secondary principles of law. The Roman law was accepted in 

 the German States of the seventeenth century as a great reposi- 

 tory and source df legal wisdom. 



But the more highly-developed sense of right amongst these 

 people naturally tended to assert itself against the hard and fast 

 principles of the Roman law. In the ranks of jurists like Samuel 

 Puffendorf, a modern authorityf tells us that the principle of 

 equity " is generally justified by an appeal to greater simplicity, 

 clarity, and naturalness ; criteria which are constantly resorted 

 to, in correction of the Roman law, and much more skilfully used 

 than by Grotius. Especially certain Roman rules of equity, 

 charily introduced under sharp limitations, are universally ex- 

 panded in accordance with the equitas juris naturalis. . . . The 

 search of some test of principle for legal rights begins with truth, 

 honour, altruism ; and in this process conventional rules conflict 

 sharply with the demands of equity against chicanery and for- 

 malism." During these centuries the Canon Law of the Church 

 played a conspicuous part in the development df both law and 

 equity. It was perhaps more straightforward and direct in 

 recognising the claims of the equitable. 



This w-as largely done by what are known as dispensations. 

 When the law pressed so hard upon the individual, that it seemed 

 to be in the public interest that he should be exempt from it, 

 he was granted a dispensation. 



Of course, the system was liable to abuse, as every system 

 is ; but its essential justice was that it aimed at redressing the 

 balance of justice by an official permission to set aside the law 

 in this or that case. The dispensations from Canon Law to-day 

 are nearly always given gratis, when just cause is recognised. 

 But our own civil law to-day furnishes an instance of the manner 

 in which the dispensation may be abused, and cease to be a func- 

 tion of equity. 



*" History of England," 1, i68. 



t" Continental Legal History Series," 1, 417 . 



