or Equity in its original sense; and here we seem to come to the first
appearance in jurisprudence of this famous term, Equity. In examining
an expression which has so remote an origin and so long a history as
this, it is always safest to penetrate, if possible, to the simple
metaphor or figure which at first shadowed forth the conception. It
has generally been supposed that AEquitas is the equivalent of the
Greek [Greek: isotes], _i.e._ the principle of equal or proportionate
distribution. The equal division of numbers or physical magnitudes is
doubtless closely entwined with our perceptions of justice; there are
few associations which keep their ground in the mind so stubbornly or
are dismissed from it with such difficulty by the deepest thinkers.
Yet in tracing the history of this association, it certainly does not
seem to have suggested itself to very early thought, but is rather the
offspring of a comparatively late philosophy. It is remarkable too
that the "equality" of laws on which the Greek democracies prided
themselves--that equality which, in the beautiful drinking song of
Callistratus, Harmodius and Aristogiton are said to have given to
Athens--had little in common with the "equity" of the Romans. The
first was an equal administration of civil laws among the citizens,
however limited the class of citizens might be; the last implied the
applicability of a law, which was not civil law, to a class which did
not necessarily consist of citizens. The first excluded a despot; the
last included foreigners, and for some purposes slaves. On the whole,
I should be disposed to look in another direction for the germ of the
Roman "Equity." The Latin word "aequus" carries with it more distinctly
than the Greek "[Greek: isos]" the sense of _levelling_. Now its
levelling tendency was exactly the characteristic of the Jus Gentium,
which would be most striking to a primitive Roman. The pure
Quiritarian law recognised a multitude of arbitrary distinctions
between classes of men and kinds of property; the Jus Gentium,
generalised from a comparison of various customs, neglected the
Quiritarian divisions. The old Roman law established, for example, a
fundamental difference between "Agnatic" and "Cognatic" relationship,
that is, between the Family considered as based upon common subjection
to patriarchal authority and the Family considered (in conformity with
modern ideas) as united through the mere fact of a common descent.
This