CHAPTER XI.

The Subject continued. The Courts of Equity. HOWEVER, there are limits to these fictions and subtilties; and the remedies of the law cannot by their means be extended to all cases that may arise, unless too many absurdities are suffered to be accumulated; nay, there have been instances 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 administration of distributive justice to all possible cases, by freeing it from the professional difficulties that have gradually grown up in its way—a new kind of courts has been instituted in England, called Courts of Equity.

The generality of people, misled by the word equity, have conceived false notions of the office of these courts; and it seems to be generally thought, that the judges who sit in them are only to follow the rules of natural equity; by which people seem to understand, that, in a court of equity, the judge may follow the dictates of his own private feelings, and ground his decisions,

as he thinks proper, on the peculiar circumstances and situation of those persons 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, considered as a court of equity; "The chancellor hath power to moderate and "temper the written law, and subjecteth him"self only to the law of nature and conscience:" for which definition, dean Swift, and Cowell, who was a lawyer, are quoted as authorities. Other instances might be produced of lawyers who have been inaccurate in their definitions of the true offices of the judges of equity. And the abovenamed doctor himself is on no subject 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 legislature. Their office only consists, as will be proved in the sequel, in providing remedies for those cases for which the public good requires that remedies should be provided, and in regard to which the courts of common law, shackled by their original forms. and institutions, cannot procure any:—or, in other words, the courts of equity have a power to administer justice to individuals, unrestrained

(not by the law, but) by the professional 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 sanction*.

An office of the kind here mentioned was soon found necessary in Rome, for reasons of the same nature with those above delineated. For it is remarkable enough, that the body of English lawyers, by refusing admittance to the code of Roman laws, as it existed in the later times of the empire, have only subjected themselves to the same difficulties under which the old Roman jurisconsults laboured, during the time they were raising the structure of those same laws. And it may also be observed, that the English lawyers, or judges, have fallen upon much the same expedients as those which the Roman jurisconsults and prætors had adopted.

This office of a judge of equity, was, in time, assumed by the prætor in Rome, in addition to

*This is a proper distinction; but it hath not always been strictly observed; for, even so late as the seventeenth century, the chancellors frequently superseded positive law by the dictates of their conscience and private opinion. Hence Selden was induced to remark, that "equity was according to the conscience of him that was chancellor."

EDIT.

the judicial power he before possessed*. At the beginning of the year for which he had been elected, the prætor made a declaration of those remedies for new difficult cases, which he had determined to afford during the time of his magistracy; in the choice of which he was no doubt directed, either by his own observations (while out of office) on the propriety of such remedies, or by the suggestions of experienced lawyers on the subject. This declaration (edictum) the prætor produced in albo, as the expression was. Modern civilians have made many conjectures on the real meaning of the above words; one of their suppositions, which is as likely to be true as any other, is, that the heads of new law remedies devised by the prætor, were written on a whitened wall by the side of his tribunal†.

Among the provisions made by the Roman prætors in their capacity of judges of equity, may be mentioned those which they introduced in favour of emancipated sons, and of relatives by the women's side (cognati), in regard to the right of inheriting. Emancipated sons were supposed, by the laws of the Twelve Tables, to have

*The prætor thus possessed two distinct branches of judicial authority, in the same manner as the Court of Exchequer does in England, which occasionally sits as a court of common law, and a court of equity.

†They were written on a white tablet. EDIT.

ceased to be the children of their father, and, as a consequence, a legal claim was denied them on the paternal inheritance of the relatives by the women's side no notice was taken, in that article of the same laws which treated of the right of succession, mention being only made of relatives by the men's side (agnati). The former the prætor admitted, by the edict unde liberi, to share their father's (or grandfather's) inheritance with their brothers; and the latter he put in possession of the patrimony of a kinsman deceased, by means of the edict unde cognati, when there were no relatives by the men's side. These two kinds of inheritance were not, however, called hæreditas, but only bonorum possessio; these words being very accurately distinguished, though the effect was in the issue exactly the same*.

*As the power of fathers, at Rome, was unbounded, and lasted as long as their life, the emancipating of sons was a case that occurred frequently enough, either for the security or satisfaction of those who engaged in any undertaking with them. The power of fathers had been carried so far by the laws of Romulus, confirmed afterwards by those of the Twelve Tables, that they might sell their sons for slaves as often as three times, if, after the first or second sale, they happened to acquire their liberty: it was only after being sold for the third time, and then becoming again free, that sons could be entirely released from the