THE ROMANO-CANONICAL ORIGINS OF THE FORMULA

It will be news to Indians, Pakistanis, and Africans that ‘justice, equity and good conscience’ has, in origin and tradition, little to do with English law, still less the Common Law of England.

¹ G. C. Rankin, Background to Indian Law (Cambridge, 1946), 119. F. Pollock, Law of Fraud... in British India, Calcutta 1894, 6-8,10. The same, Essays in the Law (London, 1922), 61. U. C. Sarkar, Epochs in Hindu Legal History (Hoshiarpur, 1958), 376-8. A. S. Nataraja Ayyar, Mimamsa Juris­prudence (Allahabad, 1952). Morley’s Digest. W. Stokes, Anglo-Indian Codes, I, xvi, xxi, 55. See now Derrett at (1962) 64 Bom. L.R. (J.), 129 ff, 145 ff.

’ ‘The personal law in British India’, J.R.S.A., 89, May 1941, 427-441, at 433.

behaviour of judges in India ought not to be explained by facile and unhistorical generalizations. But he was himself quite ignorant of the origin of the phrase, and the function which it was then intended, and fitted, to perform.

It would be a mistake to suggest that the law of Rome supplied the concept. It is not found as a ready-made formula anywhere in Roman, or for that matter Romano-canonical, texts. It arose out of Romano-canonical learning common to the whole continent of Europe as it appeared to English minds of the sixteenth century. All the materials lay ready to hand, and all the parts of the formula still lie scattered profusely in the literature which was the common reading for constitutional lawyers of that period.

It must be recollected that in discussing the nature of justice and the judicial process, the ‘office of the judge’, and the sources of law to which the judge must apply himself, the contemporary jurists did not rely exclusively upon Roman materials. These served as a useful quarry, and were repeatedly referred to, but the scheme into which they were fitted was one which had been evolved out of the practice of mediaeval Italian cities and states, and the experience of France and Germany, and the great fund of humanistic learning that had been drawn upon with increasing vigour and effect by the jurists of the ‘Aldatist’ as opposed to the (old-fashioned) ‘Bartolist’ school. A discussion of the full meaning of the first title of the Digest, De lustitia et lure, would then start with references to Aristotle,^[IX] some­times to his original Greek text, but more often to the translations which were then commonly read all over Europe.² We are thus not concerned with what Justinian meant, or what Aristotle himself meant, but with what such sources were believed to imply in practice by the leading authorities of the legal world about 1500. Specialist studies of the concept of aequum et bonum or of ius naturale as known to Cicero or Ulpian or Tribonian cannot help us? We are concerned with what was said by Giasone da Maino, alias Jason, by Budaeus, Tiraquellus, Connanus, Boerius; the views of Grotius, Heinecdus, Hunnius and other later writers, not excluding Domat (of whom we shall hear later), are only of value in so far as they evidence

the continuation into their times of views expressed by their predecessors.

It emerges from the studies of these authors that all law is founded upon the law of nature. Upon that rests the divine law, which is binding upon all Christians. Non-Christian countries and peoples may have the law of nature administered to them so far as it is not abrogated by other sources of law. The natural and divine laws are not relevant, nor need we refer to them, where custom or positive law or the terms of a valid grant or contract provide the rule of decision. Naturally, no such source can be incompatible with natural or divine law—if it were, it would be void. When we come to these applicable sources there are varying, though equally valid, methods of categorizing and cross-classifying them. We are at once in a difficulty in that our vocabulary is not adequate and a few words have to do duty in several different senses. We are by no means bound by the vocabulary of the Romans; but they had like difficulties, and quite distinct sources of law are found both in the writings of classical authors and in the Corpus luris passing under a shared name. It is necessary to explain, from time to time, what is meant by a com­mon term, such as aequitas, and what connotation is intended in the context.

Aristotle took great pains to explain that to 86caiov, which is habitually translated iustitia, ‘justice’, needs and presupposes (if it does not comprehend) to en-i«K&, which is translated aequitas.¹ The function of rd etneiKes is to adjust the written statute (of which the Greeks had plenty) to the particular circumstances of the case, and to point out the truly just solution to a problem, for which formal general rules are offered. It may not be just, in short, to apply statute or custom, or maxim or principle, without taking into account factors which place the affair in a special light—factors, such as ‘public policy’, which make it inexpedient, and so improper, to follow out logically what an over-particular, and necessarily generally expressed, law seems to imply.

* J. Oldendorpius, Tractatus locorum communium actionum iuris civilis ad usum forensem secundum aequissimas legislatorum sententias... (Volumen V Tractatuum ex Varus Juris Jnterpreubus Collectorum, Lugduni, 1549) fo. 101 v, nos. x8, 20. Budaeus (cited below) translates rd imeiKii; aequum et bonum (p. 2), SmelKem aequitas.

of law;^[X] and (ii) to supplement, make good, and otherwise remove the deficiencies of the written, or otherwise ascertainable, source of law? When we get down to practical details the picture emerges somewhat as follows.

Since ius est ars boni et aequi¹ it follows that all persons exercising judicial responsibility, whether originally or as delegates, must act so as to produce a result which is both bonum and aequum.* That is to say, an Ordinary, a judge delegate, a court of merchants, an arbiter, or an arbitrator, must give a decision which possesses benignitas and aequitas. It is only in marginal situations, where all other valid sources of law fail, that naturalis aequitas, ‘natural equity’, the ultimate source, is called upon. But, as we shall see, even in that context the judge must apply his mind to law and not to non-legal considerations or rules of his own invention? Contrasted with the office of the judge is the so- called arbitrium rusticorum,⁶ which seems to have been the Romanic counterpart of ‘palm-tree justice’, whereby the ‘arbitrator’ divides the disputed property equally between the two parties: here no juridical activity can be seen—he splits it between them, like the Monkey in Aesop’s fable, as the simplest way of quieting the noisier party. It is not even ‘rough justice’, or ‘substantial justice’, for no judicial discretion whatever has been used, and where there is no judicial

discretion there is no ius, no iustitia.

Positive law, which equity modifies or supplements, is made up of ius scriptum, the written law, i.e. statutes, constitutions, rescripts, responsa, and ius non scriptum, the unwritten law which is found out by reference to witnesses or other appropriate sources that tell us what has been taken for law in practice so long as the memory of the people, or class, has run.¹ Custom, consuetudo, is the best example of this category, and it is to be applied where there is no repugnancy to natural or divine law, or to the ius scriptum. If we see iustitia as the correlative of aequitas, then iustitia consists of positive law, made up of written and unwritten sources, statutes and custom, the applicability of these being determined either by positive law itself, or by the natural equity, that is to say, the natural reason of the case. But in another sense aequitas comes into this picture of iustitia. There can be no ius in practice without its twin, the aequitas in sense (i) which modifies or amends it to suit circumstances.² Ius strictum, or summum ius, the ‘letter of the law’, can very seldom, if ever, move without the aid of aequitas, ‘equity*. Thus, in sense (i) aequitas is bound up with iustitia, and yet seems to be by definition an addition to it ab extra. In the second sense of the term, aequitas fills the gaps left by the positive law. It supplements the ius scriptum sive non scriptum for cases not covered by statute, for example, or contemplated by custom in so many words. In sense (ii) aequitas is a most important source of law, particularly for developing countries.

* Hunnius, op. tit., pp. 27-30.

¹ Bartolus, Prim. Bartoli super Codicem (BartoR Commentaria in Primam Codicis Partem, Lugduni, 1547), fo. 33 v, no. 4; lacobi Cuiadi, op. cit., col. 91B, 1832E.

³ Baldus on Cod. Ill, 1, 8; Angelus de Perusio ad he. (In Codicem Comm., Venetiis, 1579, fo. 40 v); Jason de Mayno, In Primam Codicis Partem Comm., Venetiis, 1568, fos. 121 v—122 v. Baldus, in See. Dig. Vet. Partem Comm. (Venetiis, 1577) fo. 22 v—23 r.

aequitas scripta, aequitas non scripta cannot prevail. The prince alone, or his deputy, can solve difficulties raised where the second-mentioned conflict arises.¹ ‘Written’ equity lies in the praetorian law embodied and amalgamated with.the Civil Law in the Corpus luris of Justinian; it is also created by the joint efforts of judges, councils, and jurists in the development of the Romano-canonical system through the ages. ‘Unwritten’ equity is a complex source, always on the point of turning into ‘written’ equity.² The judge knows that the case is not provided for in the books, he views the law that has a bearing upon the topic and would supply the answer were this not a casus omissus, and investigates the ‘equitable’ rights of the parties? Bartolus, in a short but penetrating analysis of this predicament, shows that the party with a ‘natural equity’ is at a disadvantage against the party with an equity founded on the civil law; that a party with a general equity is likely to lose the case against the party with a special equity. On the one hand the judge considers the conduct and relationship of the parties, on the other the capacity of the law having a general bearing on the situation to pro­duce an answer suitable to the case. By analogy, and similar well recognized methods of reasoning, he may draw forth, as it were, by unwritten equity, the rule applicable to the case?

So much for ius strictum, aequitas (i), and aequitas (ii). Throughout we have assumed that traditional forms of law, and traditional courts, have been pursuing the course laid down for ages. The judge is answerable to an established superior, the sources of law are not in doubt, and all the time the judge has written and/or traditional sources upon which he must rely. But there are two classes of cases where, without departing for a moment from his judicial function, he cannot rely upon those sources because they do not help him. In a case where the established political authority is taken away, or is itself in doubt, and in a case which none of his formal sources contemplate, he must fall back upon his duty, his ‘office’, to give a decision ex bono et aequo.⁵ This brings us to aequitas in a further sense, sense (iii). The ultimate source of law is, of necessity, the most difficult to explain and predict. Often referred to in the Corpus Juris, little or no help is given us as to how it would work. Moreover, its importance is enhanced by the fact

* Bartolus, ubi cit., n. 20 above, no. 5; Prima Ban. sup. Dig. Nov. (1547) fo. 97 r; Sec. Ban. sup. Dig. Vet. fo. 51 r.

¹ Bartolus, ubi cit., no. 20 above, no. 4; Oldendorpius, ubi cit., fo. 102 r, nos. 27f.

’ Sec. Bortoli sup. Dig. Vet. (1547), fo. 109 r.

* Bartolus, ubi cit., no. 20 above, no. 5.

’ See above, p. 119, n. 4.

that, by the time of our jurists, the formal method of judicial adminis­tration had been abandoned in favour of decisions ex bono et aequo in at least two well-marked contexts. Even in cases where there was little or no doubt as to the nature and identity of the political superior, and the judge’s position in the constitution—even in cases where justice and equity provided ample and notorious rules—the law itself provided, by explicit enactment or by long sufferance and tradition, that aeqtdtas (iii) was the primary source of decision. In cases of widows* and orphans, in disputes regarding dowries and certain problems raised by testaments*, it was as a matter of fact provided that the technical exceptions, ‘formal defences’, should not be available. In these and certain other contexts the judge was authorized and required to con­cern himself with the substantial rights of the parties¹ and to be put off by no defences or procedural steps which obscured the truth.⁴ The farther possibility, that the judge should accept fictions in order to give a just decision, does not seem to have been contemplated by our jurists. Moreover, amongst merchants transactions regularly pro­ceeded upon the faith that disputes would be resolved by experts traditionally invested with judicial authority to act without regard to procedural regulations operative in other fora, and to apply laws of international origin, consonant with natural law, and fundamentally expressive of aequum et bonum? Moreover, even where the case was not before a court of merchants the civil judge had the duty of deciding ex aequo et bono, if statute and equity (i) were silent, equity (ii) were inapplicable, and the equities of die parties were obscure in view of a lacuna in their solemn written agreement.⁶

It is evident that decisions ex bono et aequo were of the utmost importance in many branches of judicial activity, certainly in western

* Consilia D. Ludovici de Roma (Pontani) (Venice, 1493), cons. CCCCXXX. ’ I atoms Mayni... in Primam Infortiati Partem Comm. (Venetiis, 1568)

fo. 39 v, no. 201.

¹ Ludovici Pontani... in Primam atque Secundam Dig. Nov. Partem Comm. (Venetiis, 1580), fo. 48, no. 11; Andreae Alciati... Operum, Tom. Ill (Frankfurt, 1617), col. 525.

⁴ Sec. Bart. sup. Dig. Vet. (1547), fo. 114 r.

* Sec. Bart. sup. Dig. Vet. (i547)> f°- 114 ^r; fo. 115 r. Baldus (Baldi Ubald. Perusini... in Quartum et Quintum Codicis Lib., Venetiis, 1572), fo. 117 r. Jason (in Primam Inforuaa Partem Comm., 1580), fo. 39 v, no. 204. F. Pollock, Essays (cited above), p. 5sf.

* Inst. Ill, 25, 5, cited in the gloss on Decretal. Greg. IX, I, 32,2: et ubi deficit lex et contractus, iudex facit quod ex bono et aequo sibi videtur. G. Durandus, Speculum (see n. 1, p. 119 above), p. 133, col. i. (Argumentum dnstitutionum Imperialium, Paris, 1519, fo. 189 v). countries, and in cases where no actual conflict of laws was in question. What did this jurisdiction amount to? Did it mean that the judge followed his nose, and gave judgment according to his fancy? No, these were cases for Judgments of Solomon. It is emphasized again and again that the judge consults analogous provisions of law; juridical maxims, in particular those contained in the Corpus luris, even though they have not in fact been applied to such a case in the written sources of law or equity; and the writings of jurists steeped in legal thinking.¹ Let us take three typical cases.

Merchants must decide ex bono et aequo. Is it lawful for goods belonging to merchants of country X to be seized at the application of a merchant of country Ó as security for payment of a debt owed by another merchant of country X who is outside the jurisdiction of the forum and whose own goods cannot be attached for some reason (e.g. they are not available)? This is, practically, a case of reprisal. If reprisals are consistent with the law of nature they are available and the court of merchants can be authorized by the local monarch to grant reprisals in such cases. But reprisals in fact are condemned by Papal rescript and by a well-known royal constitution; theologians more­over are disposed to doubt whether they are consistent with divine law. Yet, since reprisals are a method of enforcing an equity which the defendant ignored or frustrated, and are a means of securing that justice is done, when all simpler methods have been tried in vain, it is proper to hold that reprisals may validly be granted by a properly authorized mercantile court, or at its application.²

Widows are, as we have seen, in some places entitled to have their cases tried ex aequo et bono. Technical ‘exceptions’ are thus excluded. Can the exception of prescription, i.e. that the disputed property has been in the bona fide possession of the defendant for, say, thirty years, be admitted?³ Is it consistent with aequitas (iii) that a rule of limitation of actions, which is essentially a rule of procedure applicable in the forum, should keep the widow from property which she could prove to be hers by right? The answer seems to be that the rule of prescrip­tion, which is part and parcel of the civil law of the Romans,whose laws contain so high a proportion of natural equity, is a rule founded

' Prima Pars Consiliorum Acutissimi... Pauli de Castro (1522), Cons. VI, fo. 4 v; Hunnius, op. cit., p. 50.

² Jacobus a Canibus, Tractatus Represaliarum (Volumen XVII Tractatuum ex Var. Juris Interp. Coll., Lugduni, 1549), fo. 18, no. 19.

’ See n. 1, p. 122 above. Bartolus, Sec. Bart. sup. Dig. Vet., f. 114 r, glosses. Consilia D. Ludovici, fo. 43 v (cons. CXLIX).

upon considerations of much wider import than the defeating of claims by widows. If the defendant was indeed a bona fide possessor it is conclusively presumed that the plaintiff has been negligent or in­competent to the degree stigmatized by the law—dormientibus lex non subvenit. This represents a maxim of universal application, and is fitted to a court which procedes ex bono et aequo.

Finally, in any court a time may come in which the case presented and proved on either side is sound. No amount of iustitia or aequitas (i) or (ii) can help out the judge in such a predicament. A plaintiff sues for restitution and proves that he is entitled and has constructive possession of the property; the defendant proves title and actual pos­session grounded upon it. What is the judge to do? There are several possibilities. He could sequestrate, to force a concord. Or he could divide the property between them. This would not be a case of arbitrium rusticorum, for since the dispute is about possession, and therefore profits pending decision of the main action, no manifest harm will ensue by a division in this fashion since neither party has proved his title to the whole.¹ Or he could decide by the use of the dice, with which all courts should be supplied! Problems of law may often properly be settled by dice? Perhaps this is not one of them, since the problem is essentially not of law but of fact, and doubts regarding fact are not to be settled by recourse to the judicial dice. Perhaps the judge should postpone a decision indefinitely, or say to the parties Ite cum Deo, ‘Go with God’, i.e. ‘Good morning’. He can add if he likes,‘One of you is lying but I do not know which of you it is.’³ Alternatively he can say Uti possidetis, ita possideatis, a puzzling decision⁴ which, it has rightly been noticed, amounts to Ite in nomine diaboli, ‘Clear off, the pair of you, and go to the devil!’³ On balance both the last suggestions are more negations of the judicial office than exercise of judicial discretion, and since equality is equity the equal division between the parties seems most in accordance with aequum et bonum, or the basic rule that unless the plaintiff proves his case the defendant wins.

¹ Rebuffius, Commentaria in Constitutiones..., 1613, p. 742; Decitiones Burdegalenses Nicol. Boerii... Collectae (Lugduni, 1566) Quaestio XLII (p. 86f at pp. 93-4, no. 39 (1520)); Quaest. CCXXXIX (pp. 446-7 (1531)). Baldus, ad Lib. XXVIII Dig. (Venetiis, 1577), fo. 84 r (on Dig. XXVIII, 5, 40).

¹ Boerius, Quaest. CCXXXIX, p. 446, col. ii.

¹ Baldus, ad Lib. VII Cod., fo. 49 r.

⁴ Boerius, Quaest. CCXXXIX, p. 446, col. ii. G. Durandus, Speculum (Basle, 1563)» P- 5²4> no. 32.

⁵ Boerius, ubi tit., pp. 93, 447.

We have seen enough to realise that the structure of the jurisdiction of any judge to administer any law was built up, in the minds of the jurists of the period in which we are interested, in this fashion:

...... 1 ius scnptum

tustttia —ius stnctum, summum ius..

( ius non scnptum

{aequitas scripta 1 ( aequitas moderans (i)

aequitas non scripta J \ aequitas supplens (ii)

bonum et aequum—aequitas (iii), (conscientia)

One point remains. What was the nature of conscientia, ‘conscience’? Here is another of these words doing duty for a group of terms which our vocabulary lacks. In one sense conscientia is Aristotle’s «nei/ces. In another it is the judge’s juridical knowledge in general, his ‘con­science’ as a judge? In yet another it is the judge’s realization of the true facts of the case, drawn from personal acquaintance with them independently of the pleadings and evidence. The first sense is an embarrassment to us, and must be disregarded. The last must be brushed aside: the judge’s conscience as to facts is nowhere proper to the judicial process? The second is relevant. It is to the ‘conscience’ of die judge that all litigants, not merely those who litigate ex bono et aequo, appeal. Now ‘conscience’ has no meaning where law is clear. But where the law is unclear, or non-existent, or its applicability is challenged, appeals to the judge’s conscience are likely, and indeed inevitable? Judged from the judge’s seat one party will then have acted consistently with conscience, the other will not. The judge’s conscience will decree or reject the suit accordingly. What is done ex aequo et bono in an appropriate case (where there is jurisdiction ex bono et aequo) is bound to be consistent with the judge’s conscience and with the ‘good conscience’ of the parties. Thus the English translation of bonum et aequum was ‘conscience’, and of ex bono et aequo ‘according to good conscience’? A Court of Conscience is therefore one which acts ex bono et aequo,⁵ and it will be evident at once that although

¹ Clarissimi Juris Utriusque.,. Baldi Commentaria super Decretalibus (Lugduni, 1521), fo. 56 r. Summae Sylvestrinae (Antwerp, 1581), II, 70 f.

² Secunda Pars Consiliorum... Pauli de Castro (1522), Cons. CCXCIX, no. 4.

² Jason de Actiorubus (1540), fos. 23 v—24 v, no. 138; lasonis Mayni in Primam Infortiati Partem Comm. (1568), fo. 51 v.

⁴ Beaver’s trans, of Duck, at pp. xxviii, xxix. iudicandi ex aequo et bono demandata est=‘judging and determining according to Equity and Good Conscience*.

^s Sir Thomas Smith, De Republica Anglorum, II, 12; trans. J. de Laet (Lug. Bat., 1641), 198-9.

fifteenth-century petitioners of the Chancellor used to affirm that their adversaries had acted encountre ley et reson et bone consciencef ‘against law and right and good conscience’, or words to that effect,² the Chancellors gave justice ex aequo et bono like all other judges, that is to say where positive law and written law failed, and not otherwise. Thus to call a Chancery court a Court of Conscience is only approxi­mately correct, and may lead to misunderstandings.

Our jurists notice that in matrimonial causes aequitas is most particularly to be observed. It is evident in this and in other fields of canon law that the office of the judge is exercised according to equity, and that ex bono et aequo he may vary the sentence or determine the issue largely and at his discretion in the interests of peace, the benefit of religion and the church, and the welfare of the parties.¹ Yet even when equitable decisions, based upon the plenitudo potestatis of the Pope, most notoriously varied with the importance of the parties and the subject-matter of the dispute, no one suggested that in applying ‘public policy’⁴ and similar criteria the judge departed from a truly judicial path, or that he gave a judgment in anything but a professional manner upon the basis of legal arguments. The great role played by the Roman civil law in the administration and development of canon law proves that the authorities looked to law, and not to expediency, as the ultimate criterion.

The role of ex bono et aequo jurisdiction in modem canon law¹ and international law,¹ as also in modem continental (and Turkish) judicial administration,⁷ is beyond the scope of our present study.

IN ENGLAND The common law in its earlier centuries no doubt knew the funda­mental bases of judicial decision-making, within which this customary

¹ W. P. Baildon, Select Cases in Chancery (London, 1896), p. 119, case 121 (1420/2). C. K. Allen, Law in the Making, 6th edn. (Oxford, 1958), 390.

¹ W. T. Barbour, Oxford Studies in Social and Legal History, ed. Vinogradoff, iv (Oxford, 1914), 182, 212.

¹ Joan. Staphil. Arch. Tragurini, Super Grams... (Volumen XIIII Tracta- tuum, Lugduni, 1549), fo. 29 r, no. 9.

⁴ Jason, de Actionibus (1540), fo. 24 v; Claudius Cantiuncula, De Officio Judicis (1543) (in Vol. II Tractatuum, as above), fo. 293 r, no. 6.

⁵ C.J.C., c. 144; c. 1500; c. 1929.

‘ L. Oppenheim, International Law, ed. H. Lauterpacht (London, etc., 1952) II, p. 68-9. K. Strupp, Ac. Dr. Int., Receuil des Cours, te>jo (III), (Paris, 1931), PP- 357f, 376, 399­

⁷ Z.G.B. §4; B. K. Acharyya, Codification (cited above), 35E

system, this ius commune, fitted. But the scope of common law judges was naturally confined to issues that could be solved, grievances that could be remedied, according to that ius commune or the statutes, the ius strictum (modified, interpreted, and applied according to judicial equity) which supplemented or abrogated the ius commune. We have seen that the equitable jurisdiction of the Chancellor completed the picture of iustitia and aeqidtas, particularly aequitas in sense (ii). Courts of Conscience and Requests came into existence to supplement and rival courts of merchants, and other courts of a civil law origin, such as the Court of the Admiral, which were not bound by common law remedies or common law procedure.

The formal recognition that all law must be based either upon strict law, equity, or good conscience is evidenced during the activity which effected the reformation of the English Church and its separation from Rome. At that time it was necessary to appeal not to the English constitution as such, but to the fundamental sources of law upon which the English constitution itself stood. The Acts of the English Parliament were addressed directly to the English people, but with more than a glance at continental opinion, which would inevitably be guided by continental jurists. The man who took a leading part in putting die ideas of the time into words was Thomas Cromwell, Secretary to King Henry VIII. Cromwell is known to have spent some time studying civil law in Italy,^[XI] and he put his knowledge to good use. The Supplication of the Commons, which he drafted (1532), reveals a reliance on the Romano-canonical division of sources of law. The Commons were petitioning for relief against taxation and against other alleged inconveniences in the ecclesiastical jurisdiction in England,² and the whole was directed to the undoing of papal authority in this country. We note that the word ius can as well be translated ‘right’ as ‘law’, and that ius in this context will tend to mean ius scriptum, in particular statute and the common law as administered in the King’s courts. We note, too, that reason and in particular natural reason was viewed as synonymous with ius naturale: what is reasonable must be ex bono et aequo, but reason may be called upon at an earlier stage to supply the rule of equity in sense (ii).

The Commons are made to declare that the rules against which they complain are ‘ayenst all equytee right and good conscience’; ‘against all justice lawe equite and good conscience’; and ‘against all lawes right and good conscience’.¹ What was against conscience was not binding even morally, since granted that what could not be established in a court of law might be established in a court of conscience, what could be established in neither was not binding in any way whatever. Later we are told² that a practice ‘standeth not with the right order of justice nor good equity Q>ona aequitate=ex bono et aequo)'; ‘con­trary to right and conscience’. Again, a claim is made, ‘it standeth therefore with natural equity and good reason...’^J In the Act of Succession we are told that, notwithstanding positive law on the subject (which is about to be repealed), the succession of the bastard Elizabeth would be against ‘all honour, equite, reason, and good conscience’/ A statute of Mary declares that Cranmer, as Archbishop, pursued a course ‘against all laws, equity and conscience’.⁵

It is evident from these, as from other examples, that the appeal to ‘justice, equity and good conscience’ is an appeal to sources of law other than English common and statute law. It is an appeal to funda­mental laws, recognized universally, though the actual application of any of them might give rise to debate.

The phrase therefore embodied a concept of the Romano-canonical system that was very much alive in the high constitutional thinking of the founders of the Reformation in England, and with the con­tinuation of the controversies into the next two centuries it could hardly slip out of sight. Nor was this likely while the jurisdiction of the courts administering Civil Law, and the character of the law they administered and its advantages over the Common Law, were con­stantly brought into question. A series of publications intended to enlighten the public, and in particular the Stuart kings, as to the truth of these matters, appeared from the beginning of the seventeenth century,⁶ and these went in many cases into a number of editions, so that we can be sure that the subject enjoyed continuous attention.

¹ H. Gee and W. J. Hardy, Documents Illustrative of English Church History (London, 1896), XLVI, pp. 145!. Merriman, II, 105, 109, no.

¹ (^l533*4) 25 VIII c. 14 (St. of R. 454); (1534) 25 H. VIII c. 21 (Gee and

Hardy, LIII, pp. 8, 209O. ¹ Last cited statute (G. and H., p. 211).

⁴ (*53⁶) 28 H. VIII c. 7, preamble.

* (^J553) ¹ M. c. 1, st. 2; H.CJo. 26-28 Oct. 1553.

⁴ T. Ridley, A View of the Civile and Ecclesiastical Law (London, 1607), 2d. edn. Gregory (Oxford, 1634), repr. 1662, 1664, 1675, 1676; R. Zouch, Jurisdic­tion of the Admiralty of England Asserted (London, 1663, 1686); A. Duck, De

The result is that when the East India Company acquired the Island of Bombay, and inherited judicial responsibilities there, a climate of opinion at home favoured the continuance of the Civil Law there (it remained from 1665 ^{t0 T}^7²)? ^{analso, that in the books there are laid up such treasure of human Wisedom, Policy, Justice, Equity, and natural Reason, that the art of doing equal justice, and the doctrines of true and uncomipted right, is taught by them onely. Jur, said Celsus, est are aequi et boni’J Meanwhile West, who supplies in his Second Part numerous forms of documents needed for international commerce and known to die Civil Law, adds a long chapter on the nature of Equity derived exclusively from Romanic sources and intelligible rather to persons trained in that system than in the common law? He has a good section on conscientia, relying on Oldendorpius’ definition of the function of the judge’s conscience in detecting fallacies and administering equity? and yet he shows clearly that though equity works to supply the gaps in law, ‘to maintain aequum et bonurri, conscience has no scope without law, for they ‘join hands in the moderation of extremitie’ (where any law is to be found on the point).1}

The history of Dr St. John’s period of office as Judge-Advocate and de facto judge of the court of judicature in Bombay (1684-7) goes beyond our present enquiry, but it is of interest to see that this prot^gd of Sir Leoline Jenkins, the well-known English civilian, made the Civil Law unpopular even with the Company, and that the Royal Charters of 1726 and 1753 which regulated the Mayors’ Courts in the Presidency Towns, courts which were essentially English courts administering English law, avoid the phrase ‘justice, equity and good conscience’ or ‘equity and good conscience’, with its Civil Law flavour and substitute ‘justice and right’. The fact that it has been held judicially that the latter formula does not differ in meaning from our own⁵ does not obscure the evident fact that the draftsmen of the Charters were perfectly aware of the difference when they drew them.

In our story there appears to be no further reference to the formula from the English side, for the mention of the administration of justice in accordance with equity and good conscience which we find in Ordinance of Gambia No. 13, March 28, 1844, s. 5 may not be purely English in origin, but may well have come to Africa from India.

IN BENGAL

From Bombay and Madras in 1687 to Calcutta in 1781 is a long step in space as well as in time. When the formula was re-bom in

* Law of Laws or the Excellency of the Civil Law... (cited above), p. 280.

* The Second Part of Symboleography... whereunto is annexed another Treatise of Equitie... (London, 1611) fo. 173 v; 174 v.

¹ Ibid., fo. 176 v, sect. 13. ⁴ Ibid., sect. 12.

⁹ A. D. Narayan v Kannamma (1931) 55 Mad. 727, 746. Shaw, p. 235, 261. Calcutta the two Charters of the 1680’s were almost forgotten, and it is only with difficulty that we can imagine how the phrase can have been revived. Regulations for the Administration of Justice in the Courts of Dewannee Adaulut (i.e. Divani ‘Adalat, or civil court) of die provinces of Bengal, Bihar and Orissa passed by the Governor­General (Warren Hastings) and Council of Fort William in Bengal on July 5,1781¹ included sec. 60, ‘That in all cases, within the jurisdiction of the Mofussil Dewannee Adaulut, for which no specific Directions are hereby given, the respective Judges thereof do act according to Justice, Equity and good Conscience’, and sec. 93 which makes the same provision for the Judge of the Sudder (i.e. Sadr, or chief, appellate) Dewannee Adaulut. The provisions are obviously pro­cedural, as are most of the provisions in these ‘Regulations’, and they are intended to set out the law by which the exercise of the judges’ office should be judged in all matters (and they were at first very many) wherein the positive law of the Company was silent. This some­what peculiar way of introducing justice, equity and good conscience gives us a clue to explain the meaning and purpose of its introduction.

The Regulations were nothing more nor less than a draft compiled by Sir Elijah Impey and forwarded to the Council on July 5, 1781. In his letter¹ he explains what were his sources. The Rules, Orders and Regulations of the Sadr and Mufassil Divani ‘Adalats, some of which were very recent (in particular those of April 17, 1780 and April 6, 1781), were revised, rearranged and pruned so that repealed elements might be excluded, and he added thereto ‘some few new Rules, which I hope may prove conducive to the due Administration of Justice...’ Our rule is one of these, evidently. The Council had on April and it was because of his advice that the Council dared, by a stroke that has never ceased to elicit surprise and even indignation, to oppose the execution of the Supreme Court’s process in respect of ^amlndars by force of arms in the celebrated Cossijurah Case? He could not have done this without knowing the exact footing upon which the Company’s courts and other authoritative bodies acted, and this would mean searching through the old Charters. If the Charters of Bombay and Madras would have been of little direct help to him in this work relative to Bengal, it is certain that before he took up his appointment he would have looked into the history of Dr St. John. Not all the papers would have been available to him, but he must have known that even with the royal appointment procured for the learned doctor through Sir Leoline Jenkins he suffered much embarrassment in Bombay and was later repudiated by Child and his employers in London, claiming, at one stage, not to have been paid for his work. Letters Patent were procured for Day giving him precedence over all advocates in Calcutta,^[25] but his appointment, properly, lay and remained with the Company itself, with whom he later entered into acrimonious and fruitless controversy regarding a salary Warren Hastings rather idiotically promised him in addition to his regular salary. A desire not to fall into the trap that awaited St. John, and caught many another King’s Judge in India, would have urged him to consult the terms on which St. John went out, and to determine the nature of the controversies in which he was embroiled in reliance upon his Charter. Moreover, Day was educated at the Bar at a period noted for two phenomena of importance, namely the popularization of Civil Law and, more strongly, Natural Law doctrines amongst barristers, both at the common law and Chancery Bars; and the development of the law merchant as a branch of common law under the influence of Lord Mansfield. In a liberal age, when most barristers (and Day was no exception) were well-read in the humanities, our formula would not fail to have a meaning in theory if not, at any rate on English soil, in practice.

Yet, when Day discusses the Patna case and other problems involv­ing a consideration of the juridical bases of the judicial process as known in the mufassil of Bengal, the terms he uses show awareness of our concept without any awareness of its terms.¹ The formula is not there. He does not seem ever to have been on good terms with Impey, and though it is unlikely they failed to meet, Impey and Day were opposed in interpretation of the Regulating Act, and probably thought little of each other as professional men. On his return to England in 1785, about three years after Impey had done the like, Day boasted of his opposition to Impey during the quarrels between the Supreme Court and the Council, and this he was unlikely to do when Impey’s own danger was past (and long after Impey and Hastings had seen eye-to-eye over the question of the Company’s civil courts) unless in fact Impey and Day had been from the first unreconciled. Thus when the Council, who were quick enough to acknowledge Day’s help in 1780 in another connexion,¹ ignored him and showed their obligation to Ives, we are entitled to assume that Ives, and not Day, was the source of the additions made by Impey to the old regulations, amongst which our phrase is to be found.

As for Impey’s claim to be the author, this is feeble enough. In a collection of charters, rules, orders, and instructions which Impey compiled for his own use and which still survives,³ the Charters of 1683 and later containing the phrase ‘equity and good conscience’ do not figure. In the Bill he and all his fellow judges compiled in collaboration with Hastings and his Council in 1776⁴ no such con­ception appears: on the contrary Impey and the rest saw themselves acting as legislators and judges by turns, so that every gap could be filled by reference to the native laws or English law as the case might

* Report from the Committee... Gen. App., no. 4, p. 112.

’ State of Sir J. Day’s Claim, pp. 17-18—testimonial dated February 29,1780. ’ B.M. ADD. MSS. tenter an appearance for Ives and to defend him.³ About this time the Supreme Court heard the case of Hosea, Ives’ colleague in Murshidabad, whose irregularities, in dealing with a suit for an amount above the limit of jurisdiction of Ives’ court, gave much pain to Sir John Day when he came to examine the facts.⁴ Despite his advice that nothing could be said to justify the conduct of Hosea and his assistants, the Council thought that it would be ad­vantageous to have a decision as to whether a man could be sued as an individual for acts done in his judicial capacity. Rightly, as it turned out, for Impey, GJ., held that in suits instituted before the provincial councils, except in cases of manifest corruption, the court would not enter into the regularity of the proceedings.³ The Divani ‘Adalats, therefore, were courts in the true sense of the word, and though they were not courts known to English law they had, by reference to the residual sources of law, perhaps iure naturali, a jurisdiction which the Supreme Court would recognize. Thus undoubtedly Ives had jurisdic­tion to attach for contempt of court; and we can be sure that in Bolanaut v Ives judgment was entered for the defendant. But the necessity of investing the mufassil courts with their residual jurisdic­tion, of making them subject to a system of law which, while not being English law, provided a fair standard which the Supreme Court could

* Fac. Rec. Murshid. 14 (unfol.), December 3, 1777; ibid. 14, June 1, 1778; ibid. 16, August 9,1779, September 27,1779.

¹ Fac. Rec. Murshid. 16, May 3,1779.

’ Home Misc. Ser. 421, pp. 547-86 (June 11, 1779).

⁴ Stephen, Nuncomar, II, 157-9.

* Ibid., 159.

apply to them, giving them at once protection, security, and a measure of subjection to control, as for example for ‘manifest corruption’, must have been plain to Ives, who was so much involved. His sugges­tion will have won ready acceptance from Impey, that justice, equity and good conscience was the law by which the judges were bound in the absence of positive regulation.

From whence would a man like Ives obtain the phrase? We may never know. He went to India as a youth with no training in law. If he saw an English law-book while at Murshidabad it is most unlikely that it contained anything that could have led him in this direction. He made a good judicial officer but he was not firmly wedded to law, and was posted to political duties about six years after the event we are discussing. Possibly the phrase was bom from a suggestion of North Naylor. He was only an attorney, but he was steeped in the Company’s constitutional affairs, was actually imprisoned for con­tempt in the course of his duties, and died as a result of being so imprisoned.¹ Naylor’s views on all this must have been heart-felt: and that he communicated with Ives, whom he had to defend, is more than likely. And there the quest for the author of our formula will have to rest until new evidence appears.