VII. If a statute that repeals another is itself repealed afterwards, the first statute is thereby revived. 1

VIII. Acts of parliament derogatory to the power of subsequent parliaments bind them not. 2

IX. A saving totally repugnant to the body of the act is void.3

CHAPTER II.

ON EQUITY.

THE law of England has in the preceding chapter been divided into two portions, Common Law and Equity. The Common Law has been subdivided into common law strictly so called, or unwritten law, and statute or written law. The different species of unwritten law prevailing in England, and the nature of statute law, have been briefly explained. The nature of Equity will be considered in this chapter, so far as it is possible to take a general view of that difficult and extensive subject without entering into historical deductions or details of cases, and confining ourselves strictly to the leading features which distinguish equity from law, as they are both now administered in this country.

Some preliminary observations are requisite, before we come to consider the peculiar kind of equity technically so called in England, and by which the tribunals called courts of equity, that is to say, the high Court of Chancery, some inferior courts, and until lately the Court of Exchequer sitting in equity, regulate their decisions.

In its most ordinary acceptation the word equity is synonymous with justice. It, however, has a more strict and technical signification. Thus equity is sometimes mentioned as contradistinguished from strict law. Laws cannot be so framed as to comprehend and provide for every possible case within their scope or object.

1 1 Bl. Com. p. 90.

3 Bl. ibi. 88. 1 Rep. 47.

2 Ibid. 4 Inst. 43.

Thus

4 Voet ad Pand. L. 1. t. i. § 5, 6; and the laws there cited from the Code and Pandects.

5 "Neque leges neque senatusconsulta ita scribi possunt, ut omnes casus, qui quandoque inciderint, comprehendantur; sed sufficit ea quæ plerunque accidunt. contineri."-L. 10. ff. de legib.

the words of the law, according to their strict and literal meaning, may in particular instances lead to a subversion of the intention and principle of the law, and produce manifest injustice, either by comprehending some case to which the principle of the law does not extend, or by not embracing a case where the intention of the law was to give relief.' Grotius adopts Aristotle's definition of the equity required in these cases: "Equity is an accurate interpretation, by means of which that which is defective in the law, by reason of the too general terms wherein it is conceived, is rectified."

The meaning of this definition, as explained by Pufendorf, is, that a true equitable interpretation consists in showing, by principles of natural good sense, that a certain particular case is not comprehended within the meaning of a law, because, if it were so comprehended, some absurdity would necessarily follow.2

The same learned writer illustrates this by the well-known case supposed in Cicero's treatise De Inventione: "It was forbidden by a law to open the gates of a town during the night. A man opened the gates at night for the purpose of admitting troops to succour the town, when they would have been cut to pieces, if they had been suffered to remain without the walls until morning." It is perfectly clear that the legislator could not have intended his law to apply to such a case. Equity necessarily interposes.

"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."

The same principles manifestly apply where the words of the law do not expressly comprehend some case which cannot without absurdity be excepted from the operation of the law.3

Thus, as Voet says, in his celebrated Commentary on the Pandects, "Those things which are not expressly specified by the law must be supplied, by means of interpretation, by the jurisdiction of the judge, proceeding on the manifest meaning of the law to cases similar to

1 Grotius, Droit de la Guerre et de la Paix, 1. ii. c. xvi. § 26. Pufendorf, Dr. des Gens, l. i. c. ii. § 8; 1. v. c. xii. § 21. Blackst. Com. b. iii. p. 429, 430. Woodesson's Lectures, lect. vii.

2 St. Germain says, "In some cases it is necessary to leave the words of the law, and to follow that reason and justice requireth; and to that intent equity is ordained, that is to say, to temper and mitigate the rigour of the law," &c. "And so it appeareth that equity taketh not away the very right, but only that that seemeth to be right, by the general words of the law." Dr. and Stud., dial. i. c. xvi.

3

"In omnibus quidem, maxime tamen in jure, æquitas spectanda sit. Quotiens æquitas, desiderii naturalis ratio, aut dubitatio juris moratur, justis decretis res temperanda. Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris rationem."-L. lxxxv., xc. ff. de reg. jur. Plowd. 465-467. Co. Litt.

those provided for according to the letter of the law, wherever the principle and reason of the law apply."1

This species of equity must, however, be most cautiously and accurately used, lest the judge should entrench on the proper province of the legislature, and make law, instead of deciding according to law.

The judge must frequently say, with Ulpian, "this is very harsh, but the law is so written." Thus some of our English judges have said, that no man must be wiser than the law, meaning that no man must set himself above the law, and decide whether it is right or wrong, instead of obeying its commands. 2

In what cases the letter, and in what the equity, of the law should prevail, this is not a fitting opportunity to examine. Suffice it to say, that it is extremely difficult, if not impossible, to lay down any general rules on the subject. Each case must be considered on its own grounds, according to established rules of construction.

Both the common law and the equitable jurisdictions in this country equally profess to follow this species of equity.

"There is not," says Blackstone, "a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity: the construction must in both be the same; or, if they differ, it is only as one court of law may happen to differ from another: each endeavours to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense in a single tittle." And we have seen that the common law professes to follow the light of reason and natural justice. When a new case occurs, the courts of common law decide it, not only by the analogy of cases already decided, but by principles of equity and

We must conclude, then, that the distinction in our national jurisprudence between Law and Equity, which in this country, and in no other, are administered by perfectly distinct tribunals, is of a very peculiar and artificial nature.

The complicated and extensive system, technically called Equity in this country, was created by degrees, to fill up certain deficiencies. in the common law, and to administer justice in cases where the

IV. Domat, L. Civ., liv. prélim. § 1. 22. L. x. ff. de legib.; 1. xii. eod. tit.; 1. xxviii eod.; 1. xxxii. ff. ad. L. Aquil.

2 Edrich's case, 5 Rep. 118. b. Rex v. Great Bentley, 10 Barn. and Cress. 520. Jonas v. Smart, 1 Term. Rep. 53.

3 For the modern French Law on this point see Code Civil, 1156. 1602. And see Domat, L. Civ., liv. prélim. § 1. 23. L. ii. § 5. in fin. ff. de aqu. et aqu. pluv. arc.; 1. vii. ff. de bon. damnat.; l.xiii. § 7. ff. de excusat.

+ Lord Bacon says, "Chancery is ordained to supply the law, and not to subvert the law."-Bac. Speech. 4. Bac. Works, 488.

common-law courts could give no relief, or where any relief which they would afford must be insufficient. This is the sense in which equity has been said to moderate the rigour of the law. It cannot alter the common nor the statute law; but it proceeds in such a manner as to give relief which the common law refuses, and has regard to things which the common-law courts either cannot bring before them, or are prevented, by certain inflexible rules, from taking into consideration.

A slight view of some of the peculiarities of the common law, as contradistinguished from equity, will make these general principles tolerably clear.

It is a fundamental principle of the law of England, that all questions of fact must be decided, not by the judges, but by a jury of twelve men. This principle extends, not only to criminal trials, but to suits regarding matters of property.

The civil law rejects trial by jury, and vests the whole judical power in judges. This is probably one of the principal reasons why the English nation so strenuously resisted the introduction of the civil law. It is, indeed, obvious that the participation of a great body of private persons in the high privilege of exercising judicial power must prove a valuable safeguard of liberty against the crown.

But, however useful trial by jury undoubtedly is, in a political point of view, that celebrated institution does not appear to equal advantage, when considered juridically, as a means of administering justice in ordinary cases between man and man respecting questions of property.

No case is fit to be brought before a jury which cannot be reduced to a few questions, on the solution of which the whole matter depends. A jury would be wholly unable, for want of time as well as of the necessary education and training, to decide more complicated cases. To prepare causes for a jury, a system of pleading, that is to say, of technical allegations or statements by the parties in writing, has been gradually formed and reduced to great nicety and conciseness. The object of that system is to bring clearly out what are the real points in dispute between the parties, and what are the questions upon which the whole matter depends. By means of these preparatory proceedings, when they are completed and the case comes before the jury, the parties know exactly on what points they are at issue, and consequently on what points they are to give evidence; the judge sees at once, by inspecting the pleadings, what questions he is to put to the jury for their decision; and the jury are thus enabled to understand the case, and to give their verdict within the time to which the law has virtually limited their deliberation.

The proceedings by which a case is prepared for the jury are

necessarily very technical, and governed by strict rules, because the pleadings or statements of the parties, constituting what is called the record, must be short and exceedingly pointed, otherwise they would not answer the purpose for which they are intended.

Yet, notwithstanding all these precautions, juries frequently feel themselves incompetent to give satisfaction to their countrymen and their own consciences; and they consequently deliver a verdict subject to the opinion of the court at Westminster, or allow the question to go to an arbiter or referee. But there are cases which no system of pleading could possibly reduce within such limits, or render sufficiently intelligible for a jury to deal with them. In many cases a variety of preparatory proceedings must be directed, accounts taken, inquiries instituted, and reports made and examined, before the principle matter in dispute can be settled. Then the decree must be so modified for the occasion as to settle exactly the rights of the parties; for in many cases a simple decision in favour of the plaintiff or the defendant, without qualifications or conditions, or peculiar arrangements, will not do entire justice to either party.1

The questions which come before juries in courts of law are of a simple nature, for instance, whether A shall have the land, or B; or whether A shall or shall not pay 100l. to B. The jury have nothing to do but to find a verdict for the plaintiff or for the defendant. But cases must occur in which the rights of the parties are too complex to be settled by so simple a decision. Yet in these cases as well as the others, justice must be administered to the subject. They have necessarily fallen into the hands of the courts of equity. The proceedings of those courts are modelled, as it has been learnedly shown by Lord Chief Baron Gilbert, in his Forum Romanum, after the method of the civil and canon law. They have power to decide questions of fact as well as law, and do not therefore require juries. But sometimes a court of equity directs what is called an issue of fact; that is to say, sends some particular question or questions of fact to be tried by a jury. This, however, is entirely at the option of the court of equity. And courts of equity generally refuse to direct an issue when all the evidence necessary to decide the question of fact is before the court. An issue is directed where the evidence before the court is insufficient to satisfy the judge, and he thinks that additional evidence will be elicited by the cross-examination of witnesses before a jury. The finding of the jury is returned to the court, and the suit proceeds.

2

As courts of equity can decide questions of fact without the intervention of a jury, their system of pleading does not require to be so

Story on Equity, vol. i. c. i. § 27.

2 Vide stat. 8 & 9 Vict. c. 109. s. 19.