EQUITY. 



whose fortune fell short of this were obliged to serve in the infantry 

 under the nme circumstances. 



The lieutenant of the dictator was called " the chief of the equites 1 

 (Magitlrr Ei/mtum) ; and although in later times he was appointed to 

 this office by the dictator himself, it is probable, as Xicbuhr conjec- 

 tures (L, p. 559), that he was originally elected by the twelve centuries 

 of Plebeian equites just as the dictator, or Magiftrr Populi, was by the 



finfrai,ia, in other words, by the Populus or Patricians. 

 With regard to the functions of the equites, besides their military 

 duties, they had to act as judices or jurymen under the Sempronian 

 law : under the Servilian law the judiccs were chosen from the senate 

 as wall as from the equites : by the Olaucian law the equites alone per- 

 formed the office, and so on by alternate changes till the law of Aureh'us 

 Cotta (B.C. 70), by which the judices were chosen from the senators 

 equites, and tribuni icrarii. The equites also farmed the public 

 revenues. Those who were engaged in this business were called the 

 PtAlicani ; and though Cicero, who was himself of the equestrian 

 order, speaks of these farmers as " the flower of the Komon equites, the 

 ornament of the state, the safeguard of the republic" (' Pro Plancio/9), 

 it appears that they were a set of detestable oppressors, who made 

 themselves odious in all the provinces by their avarice and rapacity. 



The equites, as it may be inferred from what Jbas been already said, 

 gradually lost the marks of their distinctive origin, and became, as they 

 were in the time of Cicero for instance, an ordo or class of persons as 

 distinguished from the senate and the plebs. They had particular 

 seats assigned to them in the circus and the theatre. The insignia of 

 their rank, in addition to the horse, were, a golden ring and the an- 

 gustus clavus, or narrow band, on their drees, as distinguished from the 

 latus clavus or broad band of the senators : the two last insignia seem 

 to have remained after the former ceased to possess its original and 

 distinctive character. 



EQUITY, according to the definition given by Aristotle, is "the 

 rectification of the law, when, by reason of its universality, it is 

 deficient ; for this is the reason that all things are not determined by 

 law, because it is impossible that a law should be enacted concerning 

 some things ; so that there is need of a decree or decision ; for of the 

 indefinite the rule also is indefinite : as among Lesbian builders the 

 rule is leaden, for the rule is altered to suit the figure of the stone, 

 and is not fixed, and so is a decree or decision to suit the circumstances." 

 (ElJucs, b. v. c x Oxford trans.) " Equity," says Blackstone, " in its 

 true and genuine meaning, is the soul and spirit of all law ; positive 

 law is construed and rational law is made by it. In this respect, 

 equity is synonymous with justice ; in that, to the true and sound 

 interpretation of the rule." According to Grotius, equity is the 

 correction of that wherein the law, by reason of its generality, is 

 deficient. 



Until jurisprudence has become really a science based on settled 

 principles, some such jurisdiction as our earlier law writers have 

 attributed to the courts of equity is necessary to the due adminis- 

 tration of justice ; and it is probable that in England it deserved the 

 humorous description given by Selden in his ' Table Talk : ' " Equity 

 in law is the same that spirit is in religion, what every one pleases to 

 make it; sometimes they go according to conscience, sometimes 

 according to law, sometimes according to the rule of court. Equity is 

 a roguish thing ; for law we have a measure, know what to trust to ; 

 equity is according to the conscience of him that is chancellor, and as 

 that is larger or narrower, so is equity. It is all one as if they should 

 make the standard for the measure we call a foot a chancellor's foot ; 

 what on uncertain measure would this be ! One chancellor has a long 

 foot, another a short foot, a third an indifferent foot : it is the same 

 thing in the chancellor's conscience." 



This uncertainty has however long ceased in that branch of our law 

 which is expressed by the term Equity, and, from successive decisions, 

 rules as strict and principles as fixed have been framed and established 

 in our courts of equity as in our courts of law. New cases, it is true, 

 may and do arise, but they are decided upon these ascertained rules 

 and principles, and not from the notions of the judge as to what may 

 be reasonable or just in the particular cose before him. Nothing in 

 fact is more common than to hear the chancellor say, that whatever 

 may be his own opinion, he is bound by the authorities, that is, by 

 the decisions of his predecessors in office and those of the other judges 

 in equity ; that he will not shake any settled rule concerning property, 

 &c , it being for the common good that these should be certain and 

 known, however ill-founded the first resolution may have been. 



In its enlarged sense, equity answers precisely to the definition of 

 justice, or natural law (as it is called), as given in the ' Pandects ' 

 (lib. i. tit. 1, 1, 10, 11); and it is remarkable that subsequent writers 

 on this so-called natural law, and also the authors of modern treatises 

 on the doctrine of equity, as administered in the English courts, have, 

 with scarcely any exception, cited the above passage from Aristotle as 

 a definition of equity in our peculiar sense of a separate jurisdiction. 

 But according to this general definition every court is a court of 

 equity, of which a familiar instance occurs in the construction of 

 statutes, which the judges of the courts of common law constantly 

 interpret according to the spirit, or, as it is called, the equity, not the 

 strict letter. 



It is hardly possible to define equity as now administered in this 

 country, or to moke it intelligible otherwise than by a minute 



EQUITT. 



940 



enumeration of the matters cognisable in the courts in which it is 

 administered In its restrained and qualified sense. " It is no longer," 

 sys Sir James Mackintosh in his life of Sir Thomas More, " in the 

 acceptation in which the word is used in English jurisprudence, to be 

 confounded with that moral equity winch generally correct- the 

 iinjiiBt operation of law, and with which it seems to have been 

 synonymous in the days of Selden and Bacon. It is a part of laws 

 fonin <l from usages and determinations which sometimes differ from 

 what is called common law in its subjects, but chiefly varies from it 

 in its mode of proof, of trial, and of rel:> 



In this country the remedies for the redress of wrongs and for the 

 enforcement of rights are distinguished into two classes, Hunt wkifk 

 are uilminittend in court* of law, and thott irAiVA are admmiat, 

 cimrtt nf equity ; the former are called legal rights and wrongs, the 

 latter equitable. Equity jurisdiction may therefore properly be defined 

 a* that portion of remedial justice which is administered by a court 

 of equity as distinguished from a court of law, from which a court 

 of equity differs mainly in the subject matters of which it takes cogni- 

 zance and in its mode of procedure and remedies. 



Courts of common law in this country proceed by certain prescribed 

 forms of action alone, and give relief only according to the particular 

 exigency of such actions, by a general and unqualified ju.i 

 the plaintiff or the defendant. There are many cases, however, in which 

 a simple judgment for either party, without qualifications or conditions, 

 or peculiar arrangements, will not do entire justice. Some modifica- 

 tions of the rights of both parties may be required ; some restraints 

 on one side, or the other, or perhaps on both ; some qualifications or 

 conditions present or future, temporary or permanent, to be annexed 

 to the exercise of rights, or the redress of injuries. To accomplish 

 such objects the courts of law in this country have no machinery : 

 according to their present constitution they can only adjudicate by a 

 simple judgment between the parties. Such prescribed forms of 

 actions are not confined to our own system of laws ; they were known 

 in the civil law, and the party could apply them only to their original 

 purposes. In other cases he had a special remedy. Courts of equity, 

 however, are not so restrained ; they adjudicate by decree pronounced 

 upon a statement of his case by tne plaintiff, and the answer of the 

 defendant given in upon oath, nnd the evidence of witnesses, together, 

 if necessary, with the evidence of all parties, also given upon oath. 

 These decrees are so adjusted as to meet all the exigencies of the 

 particular case, and they vary, qualify, restrain, and model the remedy 

 so as to suit it to mutual and adverse claims, and the real and sub- 

 stantial rights of all the parties so far as such rights arc acknowledged 

 by the established rules of equity. 



The courts of equity bring before them all the parties interested in 

 the subject matter of the suit, and adjust the rights of all however 

 numerous ; whereas courts of law in this country are compelled by 

 then- constitution to limit their inquiry to the litigating parties, 

 although other persons may be interested : that is, they give a complete 

 remedy in damages or otherwise for the particular wrong in question 

 as between the parties to the action, though such remedy is obviously 

 in many cases an incomplete adjudication upon the general rights of 

 the parties to the action, and fails altgether as to other persons, not 

 parties to the action, who yet may be interested in the result or in 

 the subject matter in dispute. 



Perhaps the most general as well as the most precise description of 

 a court of equity is the outline given by Mr. Justice Story in the 

 ' Encyclopiedia Americana,' which he afterwards filled up in his 

 Treatise on Equity. It is this that a court of equity has juris- 

 diction in cases where a plain, adequate, and complete remedy cannot 

 be had in the common law courts. The remedy must be jilain, for 

 if it be doubtful and obscure at law, equity will assert a jurisd;ction. 

 It must be adequate, for if at law it fall short of what the party is 

 entititled to, that founds a jurisdiction in equity ; and it must be 

 complete, that is, it must attain the full end and justice of the cose, 

 it must reach the whole mischief and secure the whole right of the 

 party present and future, otherwise equity will interpose and give 

 relief. The jurisdiction of a court of equity is sometimes concurrent 

 with the jurisdiction of the courts of law; sometimes assistant to it; 

 and sometimes exclusive. It exercises concurrent jurisdiction in coses 

 where the rights are purely of a legal nature, but where other and 

 more efficient aid is required than a court of law can afford. In 

 of these cases courts of law formerly refused all redress, but now will 

 ,-raiit it. For strict law comprehending established rules, and the 

 jurisdiction of equity being called into action when the purposes of 

 ustice rendered on exception to those rules necessary, successive 

 exceptions on the same grounds became the foundation of a general 

 irinciple, and could no longer be considered as a singular interposition. 

 Thus law and equity are in continual progression, and the former is 

 constantly gaining ground upon the latter. Every new and extra- 

 ordinary interposition is by length of time converted into an old rule ; 

 a great part of what is now strict law was formerly considered aa 

 equity, and the equitable decisions of this age will unavoidably be 

 anked under the strict law of the next. (Pruf. Millar's ' View of the 

 English Government.') But the jurisdiction having been once justly 

 acquired at a time when there was no such redress at law, it is 

 not now relinquished by the courts of equity. 

 The most common exercise of the concurrent jurisdiction is in 



