COMMENTARIES ON EQUITY JURISPRUDENCE. CHAPTER I. THE TRUE NATURE AND CHARACTER OF EQUITY § 1. 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 precepta 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, 1 Dig. Lib. 1, tit. 1, 1. 10, 11. B that jus est ars boni et æqui,' where it means, what we are accustomed to call jurisprudence.2 2. Now, it would be a great mistake to suppose, that Equity, as administered in England or America, embraced a jurisdiction so wide and extensive, as that which arises from the principles of natural justice above stated. Probably the jurisprudence of no civilized nation ever attempted so wide a range of duties for any of its judicial tribunals. Even the Roman law, which has been justly thought to deal to a vast extent in matters ex æquo et bono, never affected so bold a design.3 On the contrary, it left many matters of natural justice wholly unprovided for, from the difficulty of framing any general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, and kindness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious consideration. Thus, it is well known, that in the Roman law, as well as in the common law, there are many pacts, or promises of parties, (nude pacts,) which produce no legal obligation, capable of enforcement in foro externo; but which are left to be disposed of in foro conscientia only. Cum nulla subest causa propter conven 1 Dig. Lib. 1, tit. 1, 1. 1. 2 Grotius, after referring to the Greek word, used to signify Equity, says, Latinis autem æqui prudentia vertitur, quæ se ita ad æquitatem habet, ut jurispru dentia ad justitiam. Grotius de Æquitate, 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, p. 90 to 98; Cicero. Topic. §2; II. ad Heren. 13; III. ad Heren. 2. Bracton has referred to the various senses in which jus is used. Item (says he,) jus quandoque ponitur pro jure naturali, quod semper bonum et æquum est; quandoque pro jure civili tantum ; quandoque pro jure prætorio tantum ; quandoque pro eo tantum, quod competit ex sententiâ. Bracton, Lib. 1, ch. 4, p. 3. See Dr. Taylor's definition of lex and jus. Elem. Civ. Law, p. 147, 148; Id. 178; Id. 40 to 43; Id. 55, 56; Id. 91. 3 See Heinecc. Hist. Edit. L. 1. ch. 6; De Edictis Prætorum, § 7, 8, 9, 10, 11, 12; Id. § 18, 21 to 30; De Lolme on Eng. Const. B. 1, ch. 11. Ayliffe, Pand. B. 4, tit. 1, p. 420, &c.; 1 Kaimes, Equity, introd. p. 3; Francis, Maxims, Introd. p. 5, 6, 7. 5 Ayliffe, Pand. B. 4, tit. 2, p. 424, 425; 1 Domat. Civ. Law, B. 1, tit. 1, § 5, art. 1, 6, 9. 13. tionem, hic constat non posse constituti obligationem. Igitur nuda pactio obligationem non parit.' And again. Qui autem promisit sine causa, condicere quantitatem non potest, quam non dedit, sed ipsam obligationem. And hence the settled distinction, in that law, between natural obligations, upon which no action lay, but which were merely binding in conscience, and civil obligations, which gave origin to actions.3 The latter were sometimes called just, because of their perfect obligation in a civil sense; the former merely equitable, because of their imperfect obligation. Et justum appellatur, (says Wolfius,) quicquid fit secundum jus perfectum alterius; æquum vero, quod secundum imperfectum.* Cicero has alluded to the double sense of the word Equity, in this very connexion. Equitatis, (says he,) autem vis est duplex; cujus altera directi, et veri, et justi, ut dicitur, æqui et boni ratione defenditur; altera ad vicissitudinem referendæ gratiæ pertinet; quod in beneficio gratia, in injuria ultio nominatur.5 It is scarcely necessary to add, that it is not in this latter sense, any more than in the broad and general sense above stated, which Ayliffe has, with great propriety, denominated Natural Equity, because it depends on and is supported by natural reason, that Equity is spoken of, as a branch of English Jurisprudence. The latter falls appropriately under the head of Civil Equity, as defined by the same author, being deduced from and governed by such civil maxims as are adopted by any particular state or community." §3. But there is a more limited sense, in which the term is often used, and which has the sanction of jurists in ancient, as well as in modern times, and belongs to the language of common life, as well as to that of juridical discussions. The sense here alluded to, is that, in which it is |