of equity, are, in effect, the same that were assumed by the Roman Prætor, from necessity, without any express authority." Jus prætorium est quod prætores introduxerunt, adjuvandi vel supplendi vel corrigendi juris Civilis gratia, propter utilitatem publicam."*

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Having given a historical view of a court of equity, from its origin to its present extent of power and jurisdiction, I proceed to some other matters, which must be premised before entering into particulars. The first I shall insist on, is of the greatest moment, namely, Whether a court of equity be, or ought to be, governed by any general rules? To determine every particular case, according to what is just, equal, and salutary, taking in all circumstances, is undoubtedly the idea of a court of equity in its perfection; and had we angels for judges, such would be their method of proceeding, without regarding any rules,—but men are liable to prejudice and error, and for that reason, cannot safely be trusted with unlimited powers. Hence, the necessity of establishing rules, to preserve uniformity of judgment in matters of equity as well as of common law,-the necessity is perhaps greater in the former, because of the variety and intricacy of equitable circumstances. Thus, though a particular case may require the interposition of equity to correct a wrong or supply a defect; yet the judge ought not to interpose, unless he can found his decree upon some rule that is equally applicable to all cases of the kind. If he be under no limitation, his decrees will appear arbitrary, though substantially just,and, which is worse, will often be arbitrary, and substantially unjust; for such, too frequently, are human *L. 7, § 1, De justitia et jure.

proceedings when subjected to no control. General rules, it is true, must often produce decrees that are materially unjust; for no rule can be equally just in its application to a whole class of cases that are far from being the same in every circumstance, but this inconvenience must be tolerated, to avoid a greater, that of making judges arbitrary. A court of equity is a happy invention, to remedy the errors of common law, but this remedy must stop somewhere; for courts cannot be established without end, to be checks one upon another. And hence it is, that, in the nature of things, there cannot be any other check upon a court of equity but general rules. Bacon expresses himself upon this subject with his usual elegance and perspicuity." Non sine causa in usum venerat apud "Romanos album prætoris, in quo præscripsit et

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publicavit quomodo ipse jus dicturus esset. Quo exemplo judices in curiis prætoriis, regulas sibi "certas (quantum fieri potest) proponere, easque publice affigere, debent. Etenim optima est lex, quæ minimum relinquit arbitrio judicis, optimus judex qui minimum sibi."

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In perusing the following treatise, it will be discovered, that the connections regarded by a court of equity seldom arise from personal circumstances, such as birth, resemblance of condition, or even blood, but generally from subjects that in common language are denominated goods. Why should a court, actuated by the spirit of refined justice, overlook more substantial ties, to apply itself solely to the grosser connections of interest? doth any connection founded on property make an impression equally strong with that of friendship, or blood-relation, or of country? doth

* De aug. scient. 1. 8. cap. 8. aph. 46.

not the law of nature form duties on the latter, more binding in conscience than on the former? Yet the more conscientious duties are left commonly to shift for themselves, while the duties founded on interest are supported and enforced by courts of equity. This, at first view, looks like a prevailing attachment to riches; but it is not so in reality. The duties arising from the connection last mentioned, are commonly ascertained and circumscribed, so as to be susceptible of a general rule to govern all cases of the kind. This is seldom the case of the other natural duties; which, for that reason, must be left upon conscience, without receiving any aid from a court of equity. There are, for example, not many duties more firmly rooted in our nature than that of charity; and, upon that account, a court of equity will naturally be tempted to interpose in its behalf. But the extent of this duty depends on such a variety of circumstances, that the wisest heads would in vain labour to bring it under general rules to trust, therefore, with any court, a power to direct the charity of individuals, is a remedy which to society would be more hurtful than the disease; for, instead of enforcing this duty in any regular manner, it would open a wide door to legal tyranny and oppression. Viewing the matter in this light, it will appear, that such duties are left upon conscience, not from neglect or insensibility, but from the difficulty of a proper remedy. And when such duties can be brought under a general rule, I except not even gratitude, though in the main little susceptible of circumscription, we shall see afterward, that a court of equity declines not to interpose.

In this work will be found several instances where equity and utility are in opposition; and when that

happens, the question is, Which of them ought to prevail? Equity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society. It is for that very reason, that a court of equity is upon general rules; for this measure regards the whole society, by preventing arbitrary proceedings.

bound to form its decrees

It is commonly observed, that equitable rights are less steady and permanent than those of common law : the reason will appear from what follows. A right is permanent or fluctuating, according to the circumstances upon which it is founded. The circumstances that found a right at common law, being always few and weighty, are not variable: a bond of borrowed money, for example, must subsist till it be paid. A claim in equity, on the contrary, seldom arises without a multiplicity of circumstances; which make it less permanent, for if but a single circumstance be withdrawn, the claim is gone. Suppose, for example, that an infeftment of annualrent is assigned to a creditor for his security: the creditor ought to draw his payment out of the interest before touching the capital; which is an equitable rule, because it is favourable to the assignor or cedent, without hurting the assignee. But if the cedent have another creditor who arrests the interest, the equitable rule now mentioned ceases, and gives place to another; which is, that the assignee ought to draw his payment out of the capital, leaving the interest to be drawn by the arrester. Let us next suppose, that the cedent hath a third creditor, who after the arrestment adjudges the capital. This new circumstance varies again the rule of equity: for though the cedent's interest weighs not in opposition to that of his creditor arresting, the

adjudging creditor and the arrester are upon a level as to every equitable consideration; and, upon that account, the assignee, who is the preferable creditor, ought to deal impartially between them: if he be not willing to take payment out of both subjects proportionally, but only out of the capital, or out of the interest; he ought to make an assignment to the postponed creditor, in order to redress the inequality; and if he refuse to do this act of justice, a court of equity will interpose.

This example shows the mutability of equitable claims: but there is a cause which makes them appear still more mutable than they are in reality. The strongest notion is entertained of the stability of a right of property; because no man can be deprived of his property but by his own deed. A claim of debt is understood to be stable, but in an inferior degree; because payment puts an end to it without the will of the creditor. But equitable rights, which commonly accrue to a man without any deed of his, are often lost in the same manner: and they will naturally be deemed transitory and fluctuating, when they depend so little on the will of the persons who are possessed of them.

In England, where the courts of equity and common law are different, the boundary between equity and common law, where the legislature doth not interpose, will remain always the same. But, in Scotland, and other countries where equity and common law are united in one court, the boundary varies imperceptibly; for what originally is a rule in equity, ́loses its character when it is fully established in practice; and then it is considered as common law: thus the actio negotiorum gestorum, retention, salvage,

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