The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

NOTE F.

EQUITY.

A peculiar historical development has given this word a technical meaning among English-speaking lawyers. “Reasonableness,” as mentioned in the last note, appears to be the primary and general idea. This conception, when embodied for practical use as an appeal to the common sense of right-minded men, is closely akin to that of natural justice, and further resembles it in being traceable to Aristotle. It is of the utmost importance in many branches of our modern law; but we have specialised the name of Equity for one application of it, namely that administration of extraordinary justice by the king with the advice of his Chancellor and Council, and afterwards through the Chancellor alone, which produced the Court of Chancery. Maine, when he wrote “Ancient Law,” seems to have doubted the historical truth of “the king’s general right to superintend the administration of justice” (p. 68); but in “Early Law and Custom” (ch. vi., “The King and Early Civil Justice,” p. 164), it is fully recognised. The king was held to retain a “pre-eminence of jurisdiction . . . as well for amendment as for supply of the Common Law,” though he could not alter a regular jurisdiction once established; this “supplementary or residuary jurisdiction,” as Maine aptly calls it, was exercised to form the Court of Chancery, and in due time it was held, as was inevitable, that this also had become an established Court, that the king’s power to do equity as well as strict legal justice had been completely delegated, and that accordingly he could not create any new equitable jurisdiction. It was no less inevitable that after this Equity should become a technical system (cp. Pollock, “The Expansion of the Common Law,” pp. 67-73).

Maine pointed out (E. L. and C., p. 166) that the early Roman law, “a stiff system of technical and ceremonious law,” “underwent a transformation through this very residuary or supplementary royal authority,” which under the Roman Republic was vested in the Praetor. “What has descended to so large a part of the modern world is not the coarse Roman law, but the Roman law distilled through the jurisdiction of the Praetor, and by him gradually bent into supposed accordance with the law of nature.”

As to the relation of our Court of Chancery to the law of nature, I endeavoured to sum it up two years ago in a course of lectures given in America: “The early Chancellors did not disclose the sources of their inspiration; probably they had as good grounds of expediency for not talking about the law of nature as the common lawyers.” The law of nature was intimately associated with the canon law, and for English lay people in the Middle Ages canon law signified obnoxious meddling of foreign ecclesiastics with English benefices and revenues, besides the vexatious and inquisitorial jurisdiction of bishops’ and archdeacons’ courts. “Certainly [the Chancellors] intended and endeavoured to follow the dictate of natural reason; and if their version of natural justice was somewhat artificial in its details, and bore a decided civilian or canonical stamp, this was only to be expected. Some centuries later, when British judicial officers in India were instructed to decide, in the absence of any native law applicable to both parties, according to “justice, equity, and good conscience,” the results bore, even more manifestly, the stamp of the Common Law” (“The Expansion of the Common Law,” p. 114).

Chapter IV. Page 70.