33-2 ETHICAL I'RIXCll'Lli OF EljUlTV. 



This occurs in the issue of marriage licences, which are 

 dispensations granted l)v a magistrate to condone the caUing ot 

 banns o'f marriage in a particular case. The licence is granted 

 to-day at a fixed sum, and when the sum is paid, there is never 

 any question of discussing the reasons of the request. Thus the 

 well-to-do can escape the law of banns at a price which is a 

 small matter to them. But the pcK>r, who cannot easily rn'iot 

 five pounds, and who yet may have excellent moral reasons for 

 demanding in equitv a relaxation of the law, cannot obtain it. 



But in discussing the claims of Canon and Civil law, 

 medieval theologians gave equity a status as an active principle,, 

 that marked an important advance in the legitimate developmeiit 

 of individual libertw They called it epyikia, or epiicia. or 

 epicheia, or epyichia, transliterating in dift'erent ways the one 

 Greek term c^f Aristotle. Two writers who indictated the rights 

 of the individual against the law have expounded " epicheia " 

 with great precision — St. Thomas Aquinas in the thirteenth cen- 

 tury, and the Jesuit Suarez in the sixteenth. 



In two articles of his " .Summa Theologica "' St. Thomas 

 Aquinas states the rights of the individual conscience against the 

 law. Such, he maintains, is the infinite variety of the adjimcls 

 of single human acts, that no law could be framed that would 

 be valid in every single case. The law can only embrace what is 

 generally desirable. Its observance in a particular case may 

 therefore be unjust or contrary to the public interest. Justice 

 and the good of the Commonwealth would demand that the letter 

 of the law be set aside to fulfil its sj>irit. In such an event, we 

 mav add, a good case would be made out for a dispensation "f 

 the law. 



Suarez reminds us that the lawgiver must always be ])rL-- 

 sumed to be a reasonable authority, and not willing to press the 

 law when it would inflict injustice. Hence in equity we may 

 always consider the following circumstances as modifying the 

 expressed wish of the legislator ( i ) whether the carrying out 

 of some jx)sitiAe human law would be repugnant to a natural or 

 divine law ; (2) whether^ in the given circumstances, the fulfilment 

 of the law would be beyond the competence of the legislator ; and 

 (3) we must be guided by the custom of the courts and their 

 authoritative interpretation of the law. These theologians there- 

 fore provided a moral justification for the medieval Christian 

 in applying to the civil and lu'clesiastical Courts for relief per 

 cpichciam against the letter of the law. 



But in studying the history of law, we find that the ethical 

 motive of e([uity, acting for centuries upon the letter of the law. 

 has sometimes led to the complete reversion of unjust notions 

 that were covered by the law as it stood. 



I think we may say that in ancient law. in medieval and in 

 great part of modern law,, there has been an underlying assump- 

 tion that marriage ought to be for the woman a kind of legal 

 death ; she became absorbed in the personality of her bus- 



