In

if the nature of their functions be confidered. the first place, they can neither touch Acts of Parliament, nor the established practice of the other Courts, much less reverse the judgments already paffed in these latter, as the Roman Prætors fometimes used to do in regard to the deci fions of their predeceffors in office, and sometimes alfo in regard to their own. The Courts of Equity are even reftrained from taking cognizance of any cafe for which the other Courts can poffibly afford remedies. Nay, fo strenuously have the Courts of Common Law defended the verge of their frontier, that they have prevented the Courts of Equity from ufing in their proceedings the mode of Trial by a Jury; fo that, when, in a cafe already begun to be taken cognizance of by the Court of Chancery, the Parties happen to join iffue on any particular fact (the truth or falfehood of which a Jury is to determine), the Court of Chancery is obliged to deliver up the cause to the Court of King's Bench, there to be finally decided *. In fine, the example of the regularity of the proceedings, practised in the courts of Common Law, has been communicated to the Courts of Equity; and Rolls or Records are carefully kept of the pleadings, determina

* See Cunningham's and Jacob's Law Dictionaries, paffim.

tions, and acts of those Courts, to serve as rules for future decisions *.

So far therefore from having it in his power "to temper and moderate," (that is, to alter) the Written Law or Statutes, a Judge of Equity, we find, cannot alter the Unwritten Law, that is to fay, the established practice of the other Courts, and the judgments grounded thereupon,-nor even can he meddle with thofe cafes for which either the Written or Unwritten Law has already made general provifions, and of which there is a poffibility for the ordinary Courts of Law to take cognizance.

From all the above obfervations it follows, that, of the Courts of Equity, as established in England, the following definition may be given, which is, that they are a kind of inferior experimental Legislature, continually employed in finding out and providing law remedies for thofe new fpecies of cafes for which neither the Courts of Common Law, nor the Legiflature, have as yet found it convenient or practicable to establish any, In doing which, they are to forbear to interfere with fuch cafes as they find already in general

*The Master of the Rolls is the Keeper of those records, as the title of this office expreffes, His office in the Court of Chancery is of great importance, as he can hear and determine caufes in the absence of the Lord Chancellor.

provided for. A Judge of Equity is alfo to adhere, in his decifions, to the fyftem of decrees formerly paffed in his own Court, regular records of which are kept for that purpose.

From this latter circumftance it again follows, that a Judge of Equity, by the very exercise he makes of his power, is continually abridging the arbitrary part of it; as every new cafe he determines, every precedent he establishes, becomes a land-mark or boundary which both he and his fucceffors in office are afterwards expected to regard.

Here it may be added as a conclufion, that appeals from the Decrees paffed in the Courts of Equity are carried to the Houfe of Peers; which bare circumstance might fuggeft that a Judge of Equity is fubjected to certain pofitive rules, befides thofe "of nature and confcience only;" an appeal being naturally grounded on a fuppofition that fome rules of that kind were neglected.

The above difcuffion on the English Law, has proved much longer than I intended at firft; fo much as to have fwelled, I find, into two new additional Chapters. However, I confess I have been under the greater temptation to treat at fome length the fubject of the Courts of Equity, as I have found the error (which may be called a conftitutional one) concerning the arbitrary office of thofe

thofe Courts, to be countenanced by the apparent authority of Lawyers, and of Men of abilities, at the fame time that I have not seen in any book any attempt made profeffedly to confute the fame, nor indeed to point out the nature and true office of the Courts of Equity.

CHA P. XII.

Of Criminal Justice.

WE are now to treat of an article, which, though it does not in England, and indeed should not in any State, make part of the powers which are properly Conftitutional, that is, of the reciprocal rights by means of which the Powers. that concur to form the Government constantly balance each other, yet effentially interefts the fecurity of individuals, and, in the iffue, the Conftitution itself; I mean to fpeak of Criminal Juftice. But, previous to an expofition of the laws of England on this head, it is necessary to defire the Reader's attention to certain confiderations.

When a Nation intrufts the power of the State to a certain number of perfons, or to one, it is with a view to two points: the one, to repel more effectually foreign attacks; the other, to maintain domestic tranquillity.

To accomplish the former point, each indivi dual surrenders a fhare of his property, and some. times, to a certain degree, even of his liberty. But though the power of those who are the Heads of the State may thereby be rendered very confiderable, yet it cannot be faid, that liberty is, after all, in any high degree endangered; because, should ever the Executive Power turn against the Nation a ftrength which ought to be employed folely for its defence, this Nation, if it were really free (by which I mean, unreftrained by political prejudices), would be at no loss for providing the means of its fecurity.

In regard to the latter object, that is, the maintenance of domeftic tranquillity, every individual muft, exclusive of new renunciations of his natural liberty, moreover furrender (which is a matter of far more dangerous confequence) a part of his perfonal fecurity.

The Legislative power being, from the nature of human affairs, placed in the alternative, either of expofing individuals to dangers which it is at the fame time able extremely to diminish, or of delivering up the State to the boundlefs calamities of violence and anarchy, finds itself compelled to reduce all its members within reach of the arm of the public Power, and, by withdrawing in fuch cafes the benefit of the Social ftrength, to leave

them