The Doctor and Student (1518)
Christopher St. Germain
What is equity
Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof: and that knew he well that said thus, Laws covet to be ruled by equity. And the wise man saith, Be not overmuch right wise; for the extreme right wiseness is extreme wrong: as who saith, If thou take all that the words of the law giveth thee thou shalt sometime do against the law. And for the plainer declaration what equity is, thou shalt understand, that sith the deeds and acts of men, for which laws have been ordained, happen in divers manners infinitely, it is not possible to make any general rifle of the law, but that it shall fail in some cage and therefore makers of law take heed to such things as may often come, and not to every particular case, for they could not though they would. And therefore, to follow the words of the law were in some case both against justice and the commonwealth. Wherefore in some cases it is necessary to love 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. And it is called also by some men epieikeia; the which is no other thing but an exception of the law of God, or the law of reason, from the general rules of the law of men, when they by reason of their generality, would in any particular case judge against the law of God or the law of reason: the which exception is secretly understood in every general rule of every positive law. 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. Nor it is not ordained against the cruelness of the law, for the law in such case generally taken is good in himself; but equity followeth the law in all particular cases where right and justice requireth, notwithstanding the general rule of the law be to the contrary. Wherefore it appeareth, that if any law were made by man without any such exception expressed or implied, it were manifestly unreasonable, and were not to be suffered: for such causes might come, that he that would observe the law should break both the law of God and the law of reason. As if a man make a vow that he will never eat white-meat, and after it happeneth him to come there where he can get no other meat: in this case it behoveth him to break his avow, for the particular case is excepted secretly from his general avow by his equity or epieikeia, as it is said before. Also if a law were made in a city, that no man under the pain of death should open the gates of the city before the sun-rising; yet if the citizens before that hour flying from their enemies, come to the gates of the city, and one for saving of the citizens openeth the gates before the hour appointed by the law, he offendeth not the law, for that case is excepted from the said general law by equity, as is said before. And so it appeareth that equity rather followeth the intent of the law, than the words of the law. And I suppose that there be in like wise some like equities grounded on the general rules of the law of the realm.
Stud. Yea verily; whereof one is this. There is a general prohibition in the laws of England, that it shall not be lawful to any man to enter into the freehold of another without authority of the owner or the law: but yet it is excepted from the said prohibition by the law of reason, that if a man drive beasts by the highway, and the beasts happen to escape into the corn of his neighbour, and he, to bring out his beasts, that they should do no hurt, goeth into the ground, and setteth out his beasts, there he shall justify that entry into the ground by the law. Also notwithstanding the statute of Edw. 3, made the 14th year of his reign, whereby it is ordained, that no man, upon pain of imprisonment, should give any alms to any valiant beggar, that is well able to labour; yet if a man meet with a valiant beggar in so cold a weather, and so light apparel, that if he have no clothes, he shall not be able to come to any town for succour, but is likely rather to die by the way, and he therefore giveth him apparel to save his life, he shall be excused by the said statute, by such an exception of the law of reason as I have spoken of.
Doct. I know well that, as thou sayest, he shall be excepted of the said statute by conscience, and over that, that he shall have great reward of God for his good deeds: but I would wit whether the party shall be so discharged in the Common law by such an exception of the law of reason, or not? For though ignorance invincible of a statute excuse the party against God, yet (as I have heard) it excuses not in the laws of the realm, ne yet Chancery, as some say, although the case be so that the party to whom the forfeiture is given may not with conscience leave it.
Stud. Verily, by thy question thou hast put me in a great doubt; wherefore I pray thee give me a respite therein to make thee an answer but, as I suppose for the time, (howbeit I will not fully affirm it to be as I say) it should seem that he should well plead it for his discharge at the Common law, because it shall be taken that it was the intent of the makers of the statute to except such cases. And the judges may many times judge after the mind of the makers as far as the letter may suffer, and so it seemeth they may in this case. And divers other exceptions there be also from other general grounds of the law of the realm by such equity as thou hast remembered before, that were too long to rehearse now.
Doct. But yet I pray thee shew me shortly somewhat more of the mind, under what manner a man may be holpen in this realm by such equity.
Stud. I will with good-will shew thee somewhat therein.