But the Courts of Equity in England, notwithstanding the extenfive jurifdiction they have been able in procefs of time to affume, never fuperfeded the other Courts of law. Thefe Courts ftill continue to exist in the fame manner as formerly, and have proved a lafting check on the innovations, and in general the proceedings, of the Courts of Equity. And here we may remark the fingular, and at the fame time effectual, means of baJancing each other's influence, reciprocally poffeffed by the Courts of the two different fpecies. By means of its exclufive privilege both of creating and iffuing writs, the Court of Chancery has been able to hinder the Courts of Common Law from arrogating to themselves the cognizance of thofe new cafes which were not provided for by any law in being, and thus dangerously uniting in themselves the power of Judges of Equity with that of Judges of Common Law. On the other hand, the Courts of

refcripts of the Emperors; and an equal fanction was given to the whole. This was an event of much the fame nature as that which will take place in England, whenever a coalition fhall be effected between the Courts of Common Law, and those of Equity, and both shall thenceforwards be bound alike to frame their Judgments from the whole mafs of decided cafes and precedents then exifting, at leaft of fuch as it will be poffible to bring confiftently together into one compilation.

Common Law are alone invefted with the power of punishing (or allowing damages for) thofe cafes of violence by which the proceedings of the Courts of Equity might be oppofed; and by that means they have been able to obftruct the enterprizes of the latter, and prevent their effecting in themselves the like dangerous union of the two offices of Judges of Common Law, and of Equity.

Owing to the fituation of the English Courts of Equity, with refpect to the Courts of Common Law, thofe Courts have really been kept within limits that may be called exactly defined, if the nature of their functions be confidered. In the first place, they can neither touch Acts of Parliament, nor the established practice of the other Courts, much less reverse the judgements already paffed in thefe latter, as the Roman Prætors fometimes used to do in regard to the decifions of their predeceffors in office, and sometimes also 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 ftrenuously 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 (a). In fine, the example of the regularity of the proceedings, practifed in the Courts of Common Law, has been communicated to the Courts of Equity; and Rolls or Records are carefully kept of the pleadings, determinations, and acts of thofe Courts, to ferve as rules for future decifions (b.)

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 those cafes for which either the Written or Unwritten Law have already made general provifions, and

(a) See Cunningham's and Jacob's Law Dictionaries, palim.

(b) The Mafter 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 abfence of the Lord Chancellor.

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 those new species of cafes for which neither the Courts of Common Law, nor the Legiflature, have as yet found it convenient or practicable to eftablish any. In doing which, they are to forbear to interfere with fuch cases as they find already in general 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 House of

Peers; which bare circumftance might fuggeft that a Judge of Equity is subjected 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 first; fo much as to have fwelled, I find, into two new additional Chapters. However, I confefs 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 Courts, to be countenanced by the apparent authority of Lawyers, and of Men of abilities, at the fame time that I have not feen 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.

CHAPTER XII.

Of Criminal Juftice.

WE are now to treat of an article, which,

though it does not in England, and

indeed fhould not in any State, make part o the powers which are properly Conftitutional,