VOLUME ONE CHAPTER I THE TRUE NATURE AND CHARACTER OF EQUITY JURIS PRUDENCE § 1. Nature and Character. In treating of the subject of Equity it is material to distinguish the various senses in which that word is used. For it cannot be disguised that an imperfect notion of what, in England, constitutes Equity Jurisprudence is not only common among those who are not bred to the profession, but that it has often led to mistakes and confusion in professional treatises on the subject. In the most general sense we are accustomed to call that Equity which in human transactions is founded in natural justice, in honesty and right, and which properly arises ex æquo et bono. In this sense it answers precisely to the definition of justice, or natural law, as given by Justinian in the Pandects. "Justitia est constans et perpetua voluntas jus suum cuique tribuendi." "Jus pluribus modis dicitur. Uno modo, cum id quod semper æquum et bonum, jus dicitur, ut est jus naturale." "Juris præcepta sunt hæc; honeste vivere, alterum non lædere, suum cuique tribuere." And the word "jus" is used in the same sense in the Roman law, when it is declared that "jus est ars boni et æqui "," where it means what we are accustomed to call jurisprudence.3 1 Dig. Lib. 1, tit. 1, 1. 10, 11. 2 Dig. Lib. 1, tit. 1, 1. 1. 3 Grotius, after referring to the Greek word used to signify Equity,, says, "Latinis autem æqui prudentia vertitur, quæ se ita ad æquitatem habet, ut jurisprudentia ad justitiam." Grotius De Equitate, ch. 1, § 4. This distinction is more refined than solid, as the citation in the text shows. See also Taylor's Elements of the Civil Law, pp. 90 to 98. Cicero, VOL. I.-1 1 |