fome County, different from that in which the Court is fitting; the expreffions used in the Writ being, that he runs up and down and "fecretes himself;" though no fuch fact is feriously meant to be advanced either by the Attorney or the Party.

The fame principle of ftrict adherence to certain forms long fince established, has also caufed Lawyers to introduce into their proceedings, fictitious names of perfons who are fuppofed to discharge the office of fureties; and in certain cafes, it feems, the name of a fictitious perfon is introduced in a Writ along with that of the principal Defendant, as being joined in a common caufe with him. Another inftance of the fame high regard of Lawyers, and Judges too, for certain old forms, which makes them more unwilling to depart from fuch forms than from the truth 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, lay any ferious ftrefs on the affertion (a).

(a) Another inftance of the ftrict adherence of the English Lawyers to their old established forms in preference

CHA P. XI.

The Subject continued. The Courts of Equity.

HOWEVER,

WOWEVER, 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, unlefs 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

even to the truth of facts, occurs in the manner of executing the very Act mentioned in this Chapter, paffed in the reign of George I. for preventing perfonal Arrest for debts under forty fhillings. If the defendant, after being perfonally ferved with a copy of the procefs, does not appear on the appointed days, the method is to suppose that he has actually made his appearance, and the cause is proceeded upon according to this fuppofition: fictitious names of bails are also resorted to.

'

The inhabitants of Bengal, and other Eaft-India provinces, have been prodigioufly furprised, it is faid, at the refinements, fictions, and intricacy of the English law, in regard to civil matters, which was introduced among them a few years ago; and it is certainly not to be doubted that shey may have been astonished.

in its way, a new Kind of Courts has been inftituted in England, called Courts of Equity.

The generality of people, mifled 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 those perfons who make their appearance before him. Nay, Doctor Johnfon, in his abridged Dictionary, gives the following definition of the power of the Court of Chancery, confidered as a Court of Equity: "The Chan"cellor hath power to moderate and temper the "written law, and fubjecteth 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 defpicable 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 Parlia

ment, and thus to controul the Legislature. 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 inftitutions, cannot procure any; or, in other words-the Courts of Equity have a power to adminifter Juftice to individuals, unreftrained, 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 thofe 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 exifted in the latter times of the Empire, have only fubjected themselves to the fame difficulties under which the old Roman Jurifconfults laboured, during the time they were raifing the ftructure of thofe fame Laws. And it may also be obferved, that the English Lawyers or Judges have fallen upon much the fame expedients as thofe which the Roman Jurifconfults and Prætors had ádopted.

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 (4). At the beginning of the year for which he had been elected, the Prætor made a declaration of those 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 be mentioned those which they introduced in favour of emancipated Sons and of Relations by the Women's fide (Cognati), in regard to the right of inheriting. Emancipated Sons were

(a) 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.