itself of facts, occurs in the above mentioned expedient used to bring ordinary causes before the court of exchequer, in order to be tried there at common law; which is, by making a declaration that the plaintiff is a king's debtor, though neither the court, nor the plaintiff's attorney believe the assertion."

CHAP. XI.

THE SUBJECT CONTINUED.

THE COURTS OF EQUITY.

HOWEVER, there are limits to the law fictions and subtilties we mention; and the remedies of the law cannot by their means be extended to all possible cases that arise, unless too many absurdities are suffered to be accumulated; nay, there have been instances in which the improper use of writs in the courts of law has been checked by authority. In order therefore to remedy the inconveniencies 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 this word equity, have conceived false notions of the office of the courts we mention; 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 appear to understand, that, in a court of equity, the judge may follow the dictates of his private feelings, and ground his decisions 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

m The inhabitants of Bengal, and other East India provinces, have been prodigiously surprised, it is said, at the refinements and fictions of the English law, which was introduced among them a few years ago; and it is certainly not to be doubted that they may have been astonished.

himself 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 office of the judges of equity. And the above named 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 controul 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 latter 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 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

a 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.

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

In the same manner, the laws of the twelve tables had provided relief only for cases of theft; and no mention was made in them of cases of goods taken away by force (a deed which was not looked upon in so odious a light at Rome as theft, which was considered as the peculiar guilt of slaves). In process of time the prætor promised relief to such persons 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 esse dicentur, ei in quadruplum judicium dabo.

Again, neither the law of the twelve tables, nor the laws made afterwards in the assemblies of the people, had provided remedies except for very few cases of fraud. Here the prætor likewise intervened in his capacity of judge of equity, though so very late as the time of Cicero; and promised relief to defrauded persons, in cases in which the laws in being afforded no action. Quæ dolo malo facta esse dicentur, si de his rebus alia actio non erit, et justa causa esse videbitur, judicium dabo. By edicts of the same nature, prætors in process of time gave relief in certain cases to married women, and likewise to minors, minoribus XXV annis succurrit prætor, &c.

The courts of equity established in England, have in like manner provided remedies for a very great number of cases, or species of demands, for which the courts of common law, cramped by their forms and peculiar law

At the same time the prætor proffered a new edict, he also made public those peculiar formule by which the execution of the same was to be afterwards required from him. The name of that prætor who first produced the edict above-mentioned, was Aquilius, as we are informed by Cicero, in that elegant story well kuown to scholars, in which he relates the kind of fraud that was put upon Canius, a Roman knight, when he purchased a pleasure-house and gardens, near Syracuse. This account Cicero concludes with observing that Canius was left without remedy, as Aquilius, his colleague and friend, had not yet published his formula concerning fraud." Quid enim faceret? nondum enim Aquilius, collega et familiaris meus, protulerat de dolo malo formulas. Off. III. 14.

The law collection, or system, that was formed by the series of edicts published at different times by prætors, was called jus prætorium, and also jus honorarium, (not strictly binding.) The laws of the twelve tables, together with all such other laws as had at any time been passed in the assembly of the people, were called by way of eminence, jus civile. The distinction was exactly of the same nature as that which takes place in England, between the common and the statute laws, and the law or practice of the courts of equity. The two branches of the prætor's judicial office were very accurately distinguished; and there was, besides, this capital difference between the remedies or actions, he gave in his capacity of judge of civil law, and those in his capacity of judge of equity, that the former, being grounded on the jus civile, were perpetual; the latter must be preferred within the year, and were accordingly called actiones annuæ, or actiones prætorie; in the same manner as the former were called actiones civiles or actiones perpetuæ.

tenets, can afford none. Thus, the courts of equity may, in certain cases, give actions for and against infants, notwithstanding their minority, and for and against married women, notwithstanding their coverture. Married women may even, in certain cases, sue their husbands before a court of equity. Executors may be made to pay interest for money that lies long in their hands. Courts of equity may appoint commissioners to hear the evidence of absent witnesses. When other proofs fail, they may impose an oath on either of the parties; or, in the like case of a failure of proofs, they may compel a trader to produce his books of trade. They may also confirm a title to land, though one has lost his writings, &c. &c.

This power of the courts of equity in England, of which the court of chancery is the principal one, no doubt owes its origin to the power possessed by this latter of creating and issuing writs. When new complicated cases offered, for which a new kind of writ was wanted, the judges of chancery, finding that it was necessary that justice should be done, and at the same time, being unwilling to make general and perpetual provisions on the cases before them by means of new writs, commanded the appearance of both parties, in order to procure as complete information as possible in regard to the circumstances attending the case; and then they gave a decree upon the same, by way of experiment.

To beginnings and circumstances like these, the English courts of equity, it is not to be doubted, owe their present existence. In our days, when such strict notions are entertained concerning the power of magistrates and judges, it can scarcely be supposed that those courts, however useful, could gain admittance. Nor indeed, even in the times when they were instituted, were their proceedings free from opposition; and afterwards, so late as the reign of queen Elizabeth, it was adjudged in the case of Colleston and Gardner, that the killing a sequestrator from the court of chancery, in the discharge of his business, was no murder; which judgment could only be awarded on the ground that the sequestrator's commission, and consequently the power of his employers, were illegal. How

4 When sir Edward Coke was lord chief justice of the king's bench, and lord Ellesmere, chancellor, during the reign of