CHAP. XI.

The Subject continued. The Courts of Equity.

HOWEVER, there are limits to the law.

fictions and fubtilties we mention; and the remedies of the Law cannot by their means be extended to all poffible cafes that arife, unless too many abfurdities are fuffered to be accumulated; nay, there have been inftances in' which the improper application of Writs, in the Courts of Law, has been checked by authority. In order therefore to remedy the inconveniences we mention, that is, in order to extend the adminiftration of diftributive Juftice to all poffible cafes, by freeing it from the profeffional difficulties that have gradually grown up in its way, a new Kind of Courts has been in ftituted in England, called Courts of Equity,

The generality of people, misted by this word Equity, have conceived falfe notions of the office of the Courts we mention; and it feems to be generally thought that the Judges who fit in them, are only to follow the rules of natural Equity; by which People appear to understand, that in a Court of Equity, the Judge may follow the dictates of his own private feelings, and ground his decifions as he thinks proper, on the peculiar circumftances and fituation of thofe perfons who make their appearance before him. Nay, Doctor Johnson, in his abridged Dictionary, gives the following definition of the power of the Court of Chancery,

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confidered as a Court of Equity: "The Chancellor "hath power to moderate and temper the written law, and subjecteth himself only to the law of nature and confcience : for which definition Dean Swift, and Cowell, who was a Lawyer, are quoted as authorities. Other inftances might be produced of Lawyers who have been inaccurate in their definitions of the true offices of the Judges of Equity. And the above named Doctor himself is on no fubject a despicable authority.

Certainly the power of the Judges of Equity cannot be to alter, by their own private power the Written Law, that is, Acts of Parliament, and thus to control the Legiflature. Their office only confifts, as will be proved in the fequel, in providing remedies for thofe cafes for which the public good requires that remedies fhould be provided, and in regard to which the Courts of Common Law, fhackled by their original forms and institutions, cannot procure any; or, in other wordsthe Courts of Equity have a power to administer Juftice to individuals, unrestrained, not by the Law, but by the profeffional law-difficulties which Lawyers have from time to time contrived in the Courts of Common Law, and to which the Judges of those Courts have given their fanction.

An office of the kind here mentioned, was foon found neceffary in Rome, for reafons of the fame nature with thofe above delineated. For, it is remarkable enough, that the Body of English Lawyers, by refufing admittance to the Code of Roman Laws, as it existed in the latter times of the

Empire, have only fubjected themselves to the fame difficulties under which the old Roman Jurifconfults labored, during the time they were raising the ftructure of those fame Laws. And it may also be obferved, that the English Lawyers or Judges have fallen upon much the fame expedients as those which the Roman Jurifconfults and Prætors had adopted.

This office of a Judge of Equity was in time affumed by the Prætor in Rome, in addition to the judicial power he before poffeffed. At the beginning of the year for which he had been elected, the Prætor made a declaration of thofe remedies for new difficult cafes, which he had determined to afford during the time of his Magiftracy; in the choice of which he was no doubt directed, either by his own obfervations, while out of office, on the propriety of fuch remedies, or by the fuggeftions of experienced Lawyers on the fubject. . This Declaration (Edictum) the Prætor produced in albo, as the expreffion was. Modern Civilians have made many conjectures on the real meaning of the above words: one of their fuppofitions, which is as likely to be true as any other, is, that the Prætor's Edictum, or heads of new law-remedies, were written on a whitened wall, by the, fide of his Tribunal.

Among the provifions made by the Roman Prætors in their capacity of Judges of Equity, may

The Prætor thus poffeffed two diftinct branches of judicial authority, in the fame manner as the Court of Exchequer does in England, which occafionally fits as a Court of Common Law, and a Court of Equity.

be mentioned thofe which they introduced in favor of emancipated Sons and of relations by the Women's fide (Cognati), in regard to the right of inheriting. Emancipated Sons were fuppofed, by the Laws of the Twelve Tables, to have ceafed to be the children of their Father, and, as a confequence, a legal claim was denied them on the paternal inheritance: Relations by the Women's fide were taken no notice of, in that article of the fame laws which treated of the right of fucceffion, mention being only made of relations by the Men's fide (Agnati.) The former, the Prætor admitted, by the Edict Unde Liberi, to fhare their Father's (or Grandfather's) inheritance along with their brothers; and the latter he put in poffeffion of the patrimony of a kinfman deceased, by means of the Edict Unde Cognati, when there were no relations by the Men's fide. These two kinds of inheritance were not however called hæreditas, but only bonorum possessio; these words being very accurately diftin. guished, though the effect was in the iffue exactly the fame.

2 As the power of Fathers, at Rome, was unbounded, and lafted as long as their life, the emancipating of Sons was a cafe that occurred frequently enough, either for the fecurity or fatisfaction of those who engaged in any undertaking with them. The power of Fathers had been carried fo far by the laws of Romulus, confirmed afterwards by thofe of the Twelve Tables, that they might fell their Sons for slaves as often as three times, if, after a first or fecond fale, they happened to acquire their liberty: it was only after being fold for the third time, and then becoming again free, that fons could be entirely released from the paternal authority. On this law, doctrine were founded the peculiar formality and method of emancipating Sons. A pair of scales, and fome Copper coin were first brought; without the prefence of these ingredients the whole bufinefs would have been void; and the Father then made

In the fame manner, the Laws of the Twelve Tables had provided relief only for cafes of theft; and no mention was made in them of cafes of goods taken away by force (a deed which was not looked upon in fo- odious a light at Rome as theft, which was confidered as the peculiar guilt of flaves.) In process of time the Prætor promised relief to fuch perfons as might have their goods taken from them by open force, and gave them an action for the recovery of four times the value, against those who had committed the fact with an evil intention. Si cui dolo malo bona rapta effe dicentur, ei in quadruplum JUDICIUM DABO.

Again, neither the Law of the Twelve Tables, nor the Laws made afterwards in the Affemblies of the People, had provided remedies except for very few cafes of fraud. Here the Prætor likewise interfered in his capacity of Judge of Equity. though fo very late as the times of Cicero; and promifed relief to defrauded perfons, in those cafes in which the Laws in being afforded no action Qua dolo malo facta effe dicentur, fi de his rebus alia actio non erit, & jufta caufa effe videbitur, JUDICIUM DABO. By Edicts of the fame nature, Prætors in procefs of time gave relief in certain cafes to married

a formal fale of his fon to a perfon appointed to buy him, who was immediately to free, or manumit him: thefe fales and manumiffions were repeated three times. Five witneffes were to be prefent, befides a Man to hold the scales (Libripens), and another (Antestatus) occafionally to remind the witneffes to be attentive to the bufinefs before them.

3 At the fame time that the Prætor proffered a new Edict, he alfo made public thofe peculiar formulæ by which the execution of the fame was afterwards to be required from him. The name of that Prætor who firft produced the Edict above mentioned, was Aquilius, as we are informed by Cicero, in that elegant story well nown to Scholars, in which he relates the kind of fraud that was put