The source of Roman equity was the fertile theory of natural law, or the law common to all nations.
English equity has one marked historical peculiarity, viz.
Right in law and equity, and in the concrete for an officer deputed by the sovereign to administer justice, and do right by way of judgment.
The relative merit of the two systems depends upon the question how we can secure the best efficiency and equity in the application of the principles thus far laid down.
According to Moslem traditionists Mahomet declared that one of his descendants, the imam of God, who would fill the earth with equity and justice, would bear the name of al-mandi.
It held shipper as well as carrier, and corporation as well as its officer or agent, liable for violations of the act, and conferred upon United States courts power to employ equity processes in putting an end to discrimination.
Equity as thus described would correspond rather to the judicial discretion which modifies the administration of the law than to the antagonistic system which claims to supersede the law.
The view (traceable no doubt to the Aristotelian definition) that equity mitigates the hardships of the law where the law errs through being framed in universals, is to be found in some of the earlier writings.
A more complete remedy was introduced by the Judicature Act 1873, which consolidated the courts of law and equity, and ordered that law and equity should be administered concurrently according to the rules contained in the 26th section of the act.
The two factors are inseparable, for in ancient times no sharp dividing-line was drawn between religious and civic duties: righteousness and equity, religious duty and national custom were one.
Where a man bargained and sold his land to another for pecuniary consideration, which might be merely nominal, and need not necessarily be actually paid, equity held the bargainor to be seised of the land to the use of the bargainee.
By the operation of the Judicature Act one supreme court with several divisions was constituted; each division could administer the whole law; the conflict of divergent systems of law was largely overcome by declaring that when they were at variance, the principles of equity should prevail over the doctrines of the common law.
The fusion of law and equity, the reorganization of the whole judicial system of England, and the association of all the supreme tribunals in one common home were works of no ordinary magnitude or importance, and give a character of unusual importance to his chancellorship. That Lord Selborne was a truly religious man it is impossible to doubt: his whole life was regulated and inspired by a sense of his duty towards God and his fellowmen, and a long life spent amid the temptations of legal and public life left not the faintest stain on his memory.
In other states the common law judges have also equity jurisdiction; and in four states New York, North Carolina, California and Idahothere has been a complete fusion of law and equity.
The connexion in Roman law between the ideas of equity, nature, natural law and the law common to all nations, and the influence of the Stoical philosophy on their development, are fully discussed in the third chapter of the work we have referred to.
Between this point and the time when equity became settled as a portion of the legal system, having fixed principles of its own, various views of its nature seem to have prevailed.
From that time certainly equity, like common law, has professed to take its principles wholly from recorded decisions and statute law.
Modern equity, it need hardly be said, does not profess to soften the rigour of the law, or to correct the errors into which it falls by reason of its generality.
Resolved to wipe from the map of Europe an inconvenient rival, and without any warning, in defiance of all international equity, let loose his veterans upon Denmark a second time.
The circuit courts have original jurisdiction of all actions and causes, both at law and in equity and such appellate jurisdiction as may be conferred by law.
Over in person by the sovereign, could not but recall the Aula Regia, where the Norman kings sat amid their counsellors before equity had arisen to correct law, and before the separation between the three great common law courts had begun.
He was called to the bar (Lincoln's Inn) in 1876, and made himself a thoroughly competent equity lawyer and conveyancer, but finally devoted himself to comparative jurisprudence and especially the history of English law.
To the student of the natural history of jurisprudence the fusion of the two systems of law and equity may well recall a similar result brought about in Imperial Rome; to the student of British institution, the supreme court, for once presided.
Part of this jurisdiction has, however, been withdrawn by the eleventh amendment to the Constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
Positive law, at least in progressive societies, is constantly tending to fall behind public opinion, and the expedients adopted for bringing it into harmony therewith are three, viz, legal fictions, equity and statutory legislation.
The real beginning of English equity is to be found in the custom of handing over to that officer, for adjudication, the complaints which were addressed to the king, praying for remedies beyond the reach of the common law.
To give any account, even in outline, of the subject matter of equity within the necessary limits of this article would be impossible.
Tne supreme court has general jurisdiction in law and equity, including all actions both civil and criminal.
English law has largely moulded, for example, criminal and commercial law and the law of evidence; the development of the law of corporations, damages, prohibitions and such extraordinary remedies as the mandamus has been very similar to that in other states; while in the fusion of law and equity, and the law of successions, family relations, &c., the civil law of Spain and France has been unaffected.
But Charles's insatiable lust for conquest, and his ineradicable suspicion of Denmark, induced him, on the 17th of July, without any reasonable cause, without a declaration of war, in defiance of all international equity, to endeavour to despatch an inconvenient neighbour.
The law to be administered in each state is the customary law of the state, so far as it is in accordance with the justice, equity and good conscience, and not opposed to the spirit of the law in the rest of British India.
He was called to the bar in 1858, and, in addition to his practice in equity cases, soon began to distinguish himself as an effective contributor to the higherclass reviews.
For example, the state has never made any distinction between law and equity, and it has always followed the Civil Law procedure by petition and answer.'
Both appealed to the law, and when the chief-justice, Lewis Morris, refused Cosby's request to have the court proceed in equity jurisdiction, and denied the right of the governor to establish courts of equity, he was removed from office.
These courts have original jurisdiction in cases at law and in equity in which the value in controversy exceeds $50, in criminal cases amounting to felony, in all matters of probate, in actions for divorce, &c., and appellate jurisdiction in cases arising in the inferior courts.
Prior to 1841 a divorce was granted by the legislature only, from then until 1851 it could be granted by either the legislature or the equity courts, since 1851 by the courts only.
Cases in law and equity arising under the Constitution, the laws of the United States and treaties made under their authority; 2.
The part played by equity in the development of law is admirably illustrated in the well-known work of Sir Henry Maine on Ancient Law.
Equity here is defined to mean "any body of rules existing by the side of the original civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles."
The latter, in fact, was a minor court of equity attached to the lord privy seal as the court of chancery was to the chancellor.
Upon the whole administrative machinery of government, upon criminal law and upon procedure, both criminal and civil, his influence has been most salutary; and the great legal revolution which in 1873 purported c :to accomplish the fusion of law and equity is not obscurely traceable to the same source.
The judicial department comprises a supreme court consisting of a chief justice and (since 1881) four associate justices elected for terms of six years, and lower courts consisting of district courts with original jurisdiction in civil cases in law and equity, and in criminal cases upon indictments by grand juries; justices' courts, in which the amount in litigation cannot exceed $ioo, or the punishment cannot exceed three months' imprisonment or a fine of $loo; and of municipal and probate courts with the usual jurisdictions.
For a long time it was thought that precedents could have no place in equity, inasmuch as it professed in each case to do that which was just; and we find this view maintained by common lawyers after it had been abandoned by the professors of equity themselves.
Another was the jealousy prevailing in England against the principles of the Roman law on which English equity to a large extent was founded.
- The principles of equity as set out by the following writers may be consulted: J.
The basis of the new system, which was almost entirely Field's work, was the abolition of the existing distinction in forms of procedure between suits in law and equity requiring separate actions, and their unification and simplification in a single action.
Next year, as the Melbourne administration was near its close, Plunkett, the venerable chancellor of Ireland, was forced by discreditable pressure to resign, and the Whig attorney-general, who had never practised in equity, became chancellor of Ireland, and was raised to the peerage with the title of Baron Campbell of St Andrews, in the county of Fife.
It is impossible to separate this fusion of law and equity, this union of all the higher courts into one supreme tribunal, from the construction of a single home for this great institution; and the opening of the Royal Courts in the Strand in the year 1882, when Queen Victoria personally presided in her one supreme court, and handed over the care of the building to Lord Selborne, as her chancellor and as the head of this great body, was impressive as an outward and visible sign of the silent revolution, which owed more to Lord Selborne than to any other individual.