CHAPTER XI.

THE SUBJECT CONTINUED. THE COURTS OF EQUITY.

HOWEVER, there are limits to these fictions and subtilties and the remedies of the law cannot by their means be extended to all cases that may arise, unless too many absurdities are suffered to be accumulated; nay, there have been instances 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 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 the word equity, have conceived false notions of the office of these courts; 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 seem to understand, that, in a court of equity, the judge may follow the dictates of his own private feelings, and ground his decisions, as he thinks proper, on the peculiar circumstances and situation of those persons who make their appearance before him. Nay, Dr. Johnson (in his abridged Dictionary) gives the following definition of 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 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 offices of the judges of equity. And the above-named doctor himself is on no subject a despicable authority.

the

and the cause is proceeded upon according to this supposition: fictitious names of bails are also resorted to.

[The absurd fictions mentioned in the text and in this note, have been abolished since 1830-2; and more recently John Doe and Richard Roe also have disappeared. See Supplementary Illustrations, No. 6.-Ed.]

PROCEEDINGS IN EQUITY.

105

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 control 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 later 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 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

Selden remarks, that "Equity was according to the conscience of him that was chancellor."-Ed.

+ 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.

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 heads of new law remedies devised by the prætor, 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 relatives by the women's side (cognati), in regard to the right of inheriting. Emancipated sons 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 of the relatives by the women's side no notice was taken, in that article of the same laws which treated of the right of succession, mention being only made of relatives by the men's side (agnati). The former the prætor admitted, by the edict unde liberi, to share their father's (or grandfather's) inheritance with their brothers; and the latter he put in possession of the patrimony of a kinsman deceased, by means of the edict unde cognati, when there were no relatives by the men's side. These two kinds of inheritance were not, however, called hæreditas, but only 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

*As the power of fathers, at Rome, was unbounded, and lasted as long as their life, the emancipating of sons was a case that occurred frequently enough, either for the security or satisfaction of those who engaged in any undertaking with them. The power of fathers had been carried so far by the laws of Romulus, confirmed afterwards by those of the Twelve Tables, that they might sell their sons for slaves as often as three times, if, after the first or second sale, they happened to acquire their liberty; it was only after being sold for the third time, and then becoming again free, that sons could be entirely released from the paternal authority. On this law-doctrine was founded the peculiar formality of emancipating sons. A pair of scales, and some copper

LAWS OF THE TWELVE TABLES.

107

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, et in quadruplum JUDICIUM DABO.

Again, neither the laws 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 interfered in his capacity of judge of equity, though so very late as the time of Cicero; and promised relief to defrauded persons, in those 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 succurit prætor, &c.)+

coin, were first brought; without the presence of these ingredients, the whole business would have been void: and the father then made a formal sale of his son to a person appointed to buy him, who was immediately to manumit or free him: these sales and manumissions were repeated three times. Five witnesses were to be present, besides a man to hold the scales (libripens), and another (antestatus) occasionally to remind the witnesses to be attentive to the business before them.

we are

* At the same time that the prætor proffered a new edict, he also made public those peculiar formula by which the execution of the same was afterwards to be required from him. The name of that prætor who first produced the edict above-mentioned was Aquilius, as informed by Cicero, in that elegant story well known 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 in Sicily. This account Cicero concludes with observing, that Canius was left without remedy, "as Aquilius, his colleague and friend, had not yet published his formulæ 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 statute laws, and the

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

The 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 the latter, both 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 creating 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,

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 which 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, and were called actiones civiles or actiones perpetua; the latter were obliged to be preferred within the year, and were accordingly called actiones annuæ or actiones prætoriæ.