vice, a right to the payment of all that is my due; if the debtor refuse, or if any one hinder his payment, it is a trespass, an injustice. Also I have a right to acquire knowledge, property, social position; and if any one hinder my effort, or neglect due help, he does me a wrong. Again, I have a rightful claim on my fellows for a fair judgment on my character and conduct; and to deny me the measure of honorable esteem to which I am entitled is a gross injury; to slander me, one still more gross. Moreover, I am naturally a social being; and if, without warrant, my association with companions is prevented or disconcerted, my right is infringed, I suffer a wrong, a trespass, an injustice. Thus injustice, or its cognate injury, is as truly committed, indirectly, by withholding or perverting a right, as by directly inflicting damage. Also it is evident that to prohibit injustice is to command justice. The sole difference is in the negative and positive expression of the same thing. The injunction, Thou shalt not trespass, is identical with the injunction, Be thou just. § 64. Justice taken specifically, with reference to matters involving gain or loss, is subdivided into corrective and distributive justice. Corrective justice is fairness in exchange, or honesty in a general sense. It is either voluntary, as in trade, in the market, in commerce, in fulfilling contracts and promises, in payment of debts, in remuneration for service rendered; or it is involuntary and rectoral, enforced by decrees of the courts in civil cases, as in the settlement of suits, the award of damages, the reparation of illegal trespass. Distributive justice is distinguished from corrective by not including the notion of exchange. It is the proper partition of possessions and honors among members of society. It corresponds to the notion of approbation or censure bestowed in proportion to individual merit or demerit, to the award of prizes, and of penalties in criminal cases. When a man's course in life entitles him to the esteem of his fellows, and to such outward honors as express their valuation of his worth, distributive justice requires that these be accorded. From the recipient of a benefaction it requires gratitude. It is violated by excessive adulation or by slander; even by a secret misjudging of another's worth. In case of overt infraction of law it is satisfied rather than rectified by penalty.1 § 65. Justice, in the narrow sense of legal justice, is administered by courts of law. The civil law, or else the common law, and the statute law, which these courts apply to cases, together with the forms by which their proceedings are regulated and their decrees enforced, all have their immediate ground in the authority of the State, their ultimate ground in human rights, and all are specific reductions of the one law forbidding trespass, commanding justice. Jurisprudence, in general, is the science of rights as formulated and sanctioned by governing powers. It is the science of enacted law, investigating the principles common to all systems of law. Morality enjoins obedience to the universal, natural law, jus naturale, in all possible relations of men; jurisprudence enjoins and exacts obedience to that law only in so far as it is recognized and authorized in the enactments of the State. Thus jurisprudence is a branch of ethics.2 It is clear, then, that law-makers do not originate obligations; their office is merely to interpret and formulate the 1 The distinction is from Aristotle, Nic. Eth., bk. v, chs. 3, 4. He also distinguishes commutative justice, or retaliation, ch. 5; cf. supra, § 53. Moreover he distinguishes political and economical justice, ch. 6; and subdivides the former into natural and legal, ch. 7. 2 "The design and object of laws is to ascertain what is just, honorable, and expedient; and when that is discovered, it is proclaimed as a general ordinance, equal and impartial to all. This is the origin of law, which, for various reasons, all are under obligation to obey, but especially because all obligations already existing, and to enact special sanctions. All laws, organic, municipal, military, international, all ordinances, canons, edicts, decrees, treaties and arbitrations, have the same ultimate basis, the moral law; they must be just to be obligatory. Jussum quia justum est. If the law-making power, or, more generally, the constituted authority, depart from its function, and promulgate laws or ordinances at variance with the one moral law, or for other ends than those of public and private justice, or in disregard of the original and inalienable rights of the subject, then the enforcement of such laws and ordinances is unjust rule, is tyranny.1 One qualification is needful. If an unrighteous law be not intolerably oppressive, and does not induce or sanction an immorality in the subject, then he is morally bound to obey it; for, since it emanates from constituted authority, a refusal to obey would be a trespass on the State through its accredited agents. The remedy is a repeal of the law. But if a law be so unjust as to be intolerable, then there is appeal to the higher law, jus naturale, by one as by Hampden, or by many as by the English colonists in America. This is rebellion, resulting perhaps in revolution.2 The laws enacted by any human government, however they may be elaborated and refined in the interest of thorough justice, are nevertheless unavoidably inadequate and imper law is the invention and gift of Heaven, the sentiment of wise men, the correction of every offense, and the general compact of the state; to live in conformity with which is the duty of every individual in society."-DEMOSTHENES, Oration i, contra Aristogiton. "The law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." - BLACKSTONE, Commentaries, Int. § 2, p. 41. 1 See supra, § 37, fourth paragraph. 2 Aristotle, in his Rhetoric, bk. i, ch. 13, refers to Antigone's defense of fect. They can effectually prohibit only the grosser forms of wrong doing, and secure the practice of mutual justice only in certain definite transactions, the vast majority of existing obligations, many of the weightiest, being beyond the reach of the courts. Moreover, in such cases as come under the laws, and of which the courts of law take cognizance, it is very often difficult and sometimes impracticable to determine and administer strict justice. Yet, notwithstanding these inherent defects, the laws and the courts of law are the tense woof in the texture of social organization. § 66. Very early in the progress of civilization the practice of equity arose as a complementary extension of legality. The ancients, in measuring building material of irregular surface, used a flexible leaden rule. Equity, like a leaden rule, bends to the specialities of each case, while the iron rule of enacted law is inflexible.1 Circumstances alter cases, her revolt in burying Polynices as an example of appeal to natural justice. Turning to Act. ii, scene 5, we find that Creon, the ruler, asks: "And didst thou dare to disobey my law ?" Antigone replies: "I had it not from Jove, nor the just gods Of yesterday, but made ere time began." 1 Equity, τὸ ἴσον, τὸ ἐπιεικές, υς. τὸ δίκαιον, τὸ νομικόν, is that kind of justice which corrects the irregularity cr rigor of enacted law. "Just and equitable are the same, not that justice which is according to law, but which is the correction of the legally just. . . . It is a correction of law wherever it is defective owing to its universality."- ARISTOTLE, Nic. Eth., bk. v, ch. 10. In the early Roman Empire, however, æquitas, jus æquum, was jus gentium, the law applied to subject peoples, as distinguished from jus prætorium, the law Urbis Roma; later, the two were fused into jus civile, the Roman law. The leaden rule was used in the Lesbian architecture, which " appears to have been a kind of Cyclopean masonry, and may have remained in and law rigidly applied may work injustice. Summum jus, summa injuria. Laws are expressed in general terms, and being framed with reference to ordinary cases, it often happens that the actual cases involve matter beyond their scope. Moreover, there are many matters requiring adjudication for which the laws make no provision. It is the part of equity to supply such deficiencies by special action. Thence have arisen courts of equity or courts of chancery, distinguishable from courts of law. The decisions of a judge in equity are regulated, when there is no binding precedent or statute, by reference to the original principles of justice which give rise to enacted laws; hence his decisions are a species of legislation, judicial legislation. In the development and refinement of common and statute law, many of the approved decisions in equity have become incorporated in those systems; and equity itself, being more and more determined by precedent, has become assimilated to the common law. Hence in many of our States there is a fusion of official function, the same court, sometimes on the same case, sitting now in law, now in equity. Casting off these limitations of its technical and juridical sense, the exercise of equity in the common intercourse of men is the doing what is equal, fair and right.1 It is the Lesbos from the early Pelasgian occupiers of the island. Polygonal stones were used in it, which could not be measured by a straight rule. Cf. Æschylus Fragments, 70: ̓Αλλ ̓ ὁ μὲν τις Λέσβιον κῦμ ̓ ἑν τριγώνοις ἐκπεραινέτω pvouôis where κûμа means a waved moulding."— SIR A. GRANT, Aristotle's Ethics, bk. v, ch. 10, note. 1 "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 his Pandects: Justitia est constans et perpetua voluntas jus suum cuique tribuendi. And the word jus is used in the same sense in the Roman law, when it is declared that jus est ars boni et æqui.”—STORY, Comment on Equity, p. 1, |