A treatise of this kind has been long wanting, and may be thought to have been happily reserved for our Author; who, if we are rightly informed, holds a feat in a court where these two diftinct branches of Jurifprudence, fall under the cognizance of the fame Judges. It is but juft to acknowlege, that he has handled this complicated fubject with his usual penetration and perfpicuity. His reflections are generally acute, tho' fometimes too refined; and his ftile is manly and copious, though here and there rendered uncouth to an English Reader, by an affectation of Scotticisms.

The divifions of this work are extremely analytical and judicious and the propofitions which the Author lays down, are illuftrated by appofite and familiar cafes, taken from the Roman, English, and Scotch laws. It must be confefled, however, that the illuftrations drawn from the latter, are not always fo clear to the English Reader as might be though our Author profeffes to avoid technical language, and has fubjoined an explanation of a few Scotch Law Terms, yet there are many which he has left unexplained, fuch as-Deed of Mortification - Conqueft-Poinding-Relevant-Tocher, &c. We are the more furprized at thefe omiffions, when we find, that in his Gloffary, he has explained Gratuitous as meaning the fame with Voluntary-And told us, that Writer in the Scotch law is the fame as Scrivener. The explanation of terms whose meaning is so obvious, looks like an affront to the Reader, at the fame time that he pays him too great a compliment, in fuppofing him acquainted with the sense of the others, which are more uncommon and appropriated.

Our Author prepares the Reader for an explanation of the Principles of Equity, by a very fenfible and judicious Introduction, in which he afcertains what is meant by Common Law, and gives an hiftorical view of a court of equity, from its origin to its prefent extent of power and jurifdiction.

Regulations, he obferves, reftraining individuals from injuring others, and compelling the performance of covenants, compofed originally the bulk of the common law; and fingular cafes, unknown in the ordinary courfe of dealings, were referved for the court of equity.

Equity, he very juftly premifes, fcarce known to our forefathers, makes at prefent a very great figure. In this affertion, however, he is contradicted by fome prefuming Critics, who affirm it to be against hiftorical truth, if by forefathers, fay they, the Author means Saxons. As they appear to be totally unacquainted with the elements of science, it is

no wonder that they are fo hardy in contradiction. It is probable, that they confound the origin of Equity, with the antiquity of the office of Chancellor, which is certainly of very ancient date for though Polydore Virgil tells us, that William the first was the founder of our Chancellors, yet it appears from Dugdale's Origines Juridiciales, that there were many Chancellors long before that time; and we have Lord. Coke's authority, that both the British and Saxon Kings had their Chancellors. But, from the hiftory of Chancery, we may collect, that the Chancellors originally prefided over a political college of Secretaries, for the writing of treaties, grants, and other public bufinefs: they then became Judges, to hear and determine petitions which were referred to the King; and as business increased, people preferred their fuits immediately to the Chancellor, without application to the King, and from this practice we may date the rife of a court of equity, for while, according to the old conftitution, the court of equity was held before the King and his Council in the palace, It was, in fact, little better than an arbitrary jurifdiction our Author, therefore, is clearly juftifiable, in afferting, that Equity was scarce known to our forefathers.

The more refined duties of Morality, as he obferves, were, in that early period, little felt, and lefs regarded. In the progrefs of fociety, and in the course of practice, many duties were evolved, which, by ripenefs of difcernment, and growing delicacy of fentiment, were found to be binding in confcience. Such duties, or the most obvious of them, could no longer be neglected by courts of juftice; and as they made no part of the common law, they came naturally under the jurifdiction of the court of equity.

Our Author then proceeds to trace thefe refined duties of the law of nature from their true fource. It is evident, he fays, that univerfal benevolence, inculcated by fome Writers as a duty, would be extremely difproportioned to the limited capacity of man: his attention behoved to be distracted,' and his duty rendered impracticable, among an endless number and variety of objects.

Nature, he adds, hath more wifely adjufted the duty of man to his limited capacity. Benevolence, it is true, is his duty; but then the objects of his benevolence are limited in exact conformity to his nature. The connections that ex-. cite benevolence, differ widely in degree, from the most remote to the most intimate; and benevolence is excited in a juft proportion to the degree of the connection. In rude ages, pofitive acts of benevolence, however peculiar the connec

tion may be, are but faintly perceived to be our duty. Such perceptions become gradually more firm and clear, by custom and reflection; and when men are fo far enlightned, it is the duty as well as honour of Judges to interpofe.

He illuftrates this branch of equitable jurifdiction by various examples, from which we shall select the following. • In

a violent form, the heaviest goods are thrown overboard, in order to difburthen the fhip: the Proprietors of the goods preferved by this means from the fea, muft be fenfible, that they ought to repair the lofs: for the man who has thus abandoned his goods for the common fafety, ought to be in no worse condition than themfelves. Equity dictates this to be their duty, and if they be refractory, a court of equity will interpofe in behalf of the fufferer.'

Having confidered the duties arifing from connections independent altogether of confent, he proceeds to treat of the various connections and duties refulting from covenants and promifes. Equity, he obferves, fupplies the defects of Common Law, by taking under confideration every material circumftance, in order that juftice may be diftributed in the most perfect manner. It fometimes fupplies a defect in words, where will is evidently more extenfive, and fometimes fupplies a defect even in will, according to what probably would have been the will of the Partics had they forefeen the event.

The Writer, in the next place, infifts on the neceffity that a court of equity fhould be governed by general rules. Though a particular cafe, fays he, may require the interpofition of a court of equity, to correct a wrong, or fupply a defect, yet the Judge ought not to interpofe, unless he can found his decree upon fome rule that is equally applicable to all cafes of the kind. We muft ftop short somewhere: for courts cannot be established without end, to be checks upon one another: and hence it is, that in the nature of things, there cannot be any other check upon a court of equity but general rules.

Towards the end of the introduction, our Author examines an intricate and long controverted queftion-Whether Common Law and Equity ought to be committed to the fame or to different courts. The profound Bacon,' fays he, gives his opinion in the following words: "Apud nonnul"los receptum eft, ut jurifdictio, que decernit fecundum æquum & bonum, atque illa altera, quæ procedit fecundum jus ftrictum, iifdem curiis deputentur: apud alios autem, "ut diverfis omnino placet curiarum feparatio. Neque enim "fervabitur diftinctio cafuum, fi fiat commixtio jurifdictio"num: fed arbitrium legem tandem trahet." Of all

• questions,

queftions, thofe which concern the conftitution of a State and its police, being the most involved in circumstances, are, for that reafon, the most difficult to be brought under precife principles. I pretend not to deliver any opinion on this point; and feeling in myfelf a bias against the great authority mentioned, I fcarce venture to form an opinion. It may be not improper, however, to hazard a few obferva4tions preparatory to a more accurate difcuffion. I am thoroughly fenfible of the weight of the argument ufed in the foregoing citation. In the fcience of jurifprudence it is undoubtedly of great importance, that the boundary betwixt equity and common law be clearly afcertained; without which we fhall in vain hope for juft decifions. A Judge ⚫ uncertain about the preliminary point, viz. whether the cafe belong to cquity or common law, cannot have a clear conception what fentence ought to be pronounced: but a court that judges of both, being relieved from determining the preliminary point, will be apt to lofe fight altogether of the diftinction betwixt common law and equity. On the other hand, may it not be urged, that the dividing among <different courts things intimately connected, bears hard upon every man who has a claim to profecute. Before bringing his action he muft at his peril determine an extreme nice point, viz. Whether the cafe be governed by common law or by equity. An error in this preliminary point, though not fatal to the caufe, becaufe a remedy is provided, is, however, productive of much trouble and expence. is the most profound knowlege of law fufficient always to prevent this evil; because it cannot always be forefeen what plea will be put in for the defendant, whether a plea in equity or at common law.

'

Nor

In the next place, to us in Scotland, it appears in fome degree abfurd, to find a court fo conftituted, that in many cafes an iniquitous judgment must be the refult. This not only happens frequently with respect to covenants, as above mentioned, but will always happen where a claim founded on ' common law, which must be brought before a court of com< mon law, is oppofed by an equitable defence, which cannot be regarded by fuch a court. Weighing thefe different arguments with fome attention, the preponderancy feems to be on the fide of an united jurifdiction. I give my reafon.

The fole inconvenience of an united jurisdiction, viz. that it tends to blend common law with equity, may admit a remedy, by an inftitute diftinguifhing with accuracy their boundaries: but the inconvenience of a divided jurifdic

⚫tion admits not any effectual remedy. These hints at the fame time, are fuggefted with the greateft diffidence; for I cannot be ignorant of the bias that naturally is produced by custom and established practice.

In Scotland, as well as in

King's council was originallther civilized countries, the

the only court that had power

to remedy the defects, or redress injuftice in common law. To this extraordinary power the court of feffion naturally fucceeded, as, being the fupreme court in civil matters. For in every well regulated fociety, this power must be trufted with fome one court, and with none more properly • than with that which is fupreme. It may at firft fight appear furprizing, that no mention is made of this extraordinary power in any of the regulations concerning the court of feffion. Probably the thing was not intended nor thought of. The neceffity, however, of fuch a power brought it in time to an establishment. That the court itself had at : first no notion of being poffeffed of this privilege, is evident from the act of federunt, 27th November, 1592, declaring, That in time coming they will judge and decide "upon claufes irritant, contained in contracts, tacks, infeft"ments, bonds, and obligations, precifely according to the

words and meaning of the fame;" which in effect was declaring themselves a court of common law, not of equity. But the mistake was foon difcovered. The act of federunt wore out of use; and now for more than a century, the court of feflion hath acted as a court of equity as well as of common law. Nor is it rare to find powers evolved in practice, which were not in view at the inftitution of a court. When the Roman Pretor was created to be the fupreme Judge in place of the Confuls, there is no appearance that any inftructions were given him concerning matters of equity. And even as to the English court of Chancery, though originally a court of equity, there was not at first the leaft notion entertained of that extenfive jurifdiction to which in later times it hath justly arrived,

Our Author has delivered his fentiments on this important question with fuch modesty and reserve, that it becomes us to express our thoughts on the occafion with the utmoft diffidence. We are, as well as the Writer, confcious of the bias that is naturally produced by cuftom and established practice: we dare not, therefore, fuppofe ourselves totally exempt from prejudice, when we declare in favour of Lord Bacon's opinion. There are, no doubt, inconveniencies on both fides s but thofe on the fide of a feparate jurifdiction feem to be leaft confiderable