5. But, laſtly, the moſt univerſal and effectual way of diſcovering the true meaning of a law, when the words are dubious, is by conſidering the reaſon and ſpirit of it; or the cauſe which moved the legiſlator to enact it. For when this reaſon ceaſes, the law itſelf ought likewiſe to ceaſe with it. An inſtance of this is given in a caſe put by Cicero, or whoever was the author of the rhetorical treatiſe inſcribed to Herennius. There was a law, that thoſe who in a ſtorm forſook the ſhip ſhould forfeit all property therein; and the ſhip and lading ſhould belong entirely to thoſe who ſtaid in it. In a dangerous tempeſt all the mariners forſook the ſhip, except only one ſick paſſenger, who by reaſon of his diſeaſe was unable to get out and eſcape. By chance the ſhip came ſafe to port. The ſick man kept poſſeſſion and claimed the benefit of the law. Now here all the learned agree, that the ſick man is not within the reaſon of the law; for the reaſon of making it was, to give encouragement to ſuch as ſhould venture their lives to ſave the veſſel: but this is a merit, which he could never pretend to, who neither ſtaid in the ſhip upon that account, nor contributed any thing to it's preſervation.
From this method of interpreting laws, by the reaſon of them, ariſes what we call equity; which is thus defined by Grotius , “the correction of that, wherein the law (by reaſon of it's univerſality) is deficient.” For ſince in laws all caſes cannot be foreſeen or expreſſed, it is neceſſary, that when the general decrees of the law come to be applied to particular caſes, there ſhould be ſomewhere a power veſted of defining thoſe circumſtances, which (had they been foreſeen) the legiſlator himſelf would have expreſſed. And theſe are the caſes, which, according to Grotius, “lex non exacte definit, ſed arbitrio boni viri permittit.”Equity thus depending, eſſentially, upon the particular circumſtances of each individual caſe, there can be no eſtabliſhed
- l. 1. c. II.
- de aequitate.