But when the great advantages of a court of law were experienced, its jurisdiction was gradually extended, with universal approbation: it was extended, with very few exceptions, to every covenant and every promise: it was extended also to other matters, till it embraced every obvious duty arising in ordinary dealings between man and man. But it was extended no farther; experience having discovered limits, beyond which it was deemed hazardous to stretch this jurisdiction. Causes of an extraordinary nature, requiring some singular remedy, could not be safely trusted with the ordinary courts, because no rules were established to direct their proceedings in such matters; and, upon that account, such causes were appropriated to the king and council, being the paramount court (a). Of this nature were actions for proving the tenor or contents of a lost writ; extraordinary removings against tenants possessing by lease; the causes of pupils, orphans, and foreigners; complaints against judges and officers of law*, and the more atrocious crimes, termed, Pleas of the Crown. Such extraordinary causes, multiplying greatly by complex and intricate connections among individuals, became a burden too great for the king and council. In order, therefore, to relieve this court, extraordinary causes of a civil nature were, in England, devolved upon the court of chancery; a measure the

(a) We find the same regulation among the Jews: "And "Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers "of fifties, and rulers of tens. And they judged the people at all seasons: the hard causes they brought unto Moses, but every "small matter they judged themselves." Exodus, xviii, 25, 26. See act 105, parl. 1487.

more necessary, that the king, occupied with the momentous affairs of government, and with foreign as well as domestic transactions, had not leisure for private causes. In Scotland, more remote, and therefore less interested in foreign affairs, there was not the same necessity for this innovation: our kings, however, addicted to action more than to contemplation, neglected, in a great measure, their privilege of being judges, and suffered causes peculiar to the king and council to be gradually assumed by other sovereign courts. The establishment of the court of chan cery in England, made it necessary to give a name to the more ordinary branch of law, that is, the province of the common or ordinary courts; it is termed, the Common Law: and in opposition to it, the extraordinary branch devolved on the court of chancery is termed Equity; the name being derived from the nature of the jurisdiction, directed less by precise rules, than secundum æquum et bonum, or according to what the judge in conscience thinks right (a). Thus equity, in its proper sense, comprehends every matter of law that, by the common law, is left without remedy; and supposing the boundaries of the common law to be ascertained, there can no longer remain any difficulty about the powers of a court of equity. But as these boundaries are not ascertained by any natural rule, the jurisdiction of common law must depend in a great measure upon accident and

(a) At curiæ sunto et jurisdictiones, quæ statuant ex arbitrio boni viri et discretione sana, ubi legis norma deficit. Lex enim non sufficit casibus, sed ad ea quæ plerumque accidunt aptatur: sapientissima autem res tempus, (ut ab antiquis dictum est), et novorum casuum quotidie author et inventor. Bacon de Aug. Scien. lib. 8, cap. 3, aphor. 32.

arbitrary practice; and, accordingly, the boundaries of common law and equity vary in different countries, and at different times in the same country. We have seen, that the common law of Britain was originally not so extensive as at present; and instances will be mentioned afterward, which evince, that the common law is in Scotland farther extended than in England. Its limits are perhaps not accurately ascertained in any country; which is to be regretted, because of the uncertainty that must follow in the practice of law. It is lucky, however, that the disease is not incurable: a good understanding between the judges of the different courts, with just notions of law, may, in time, ascertain these limits with sufficient accuracy.

Among a plain people, strangers to refinement and subtilities, law-suits may be frequent, but never are intricate. Regulations to restrain individuals from doing mischief, and to enforce performance of covenants, composed originally the bulk of the common law; and these two branches, among our rude ancestors, seemed to comprehend every subject of law. The more refined duties of morality were, in that early period, little felt, and less regarded. But law, in this simple form, cannot long continue stationary : for, in the social state, under regular discipline, law ripens gradually with the human faculties; and by ripeness of discernment, and delicacy of sentiment, many duties, formerly neglected, are found to be binding in conscience. Such duties can no longer be neglected by courts of justice; and as they made no part of the common law, they come naturally under the jurisdiction of a court of equity.

The chief objects of benevolence, considered as a

duty, are our relations, our benefactors, our masters, our servants, &c.; and these duties, or the most obvious of them, come under the cognisance of common law. But there are other connections, which, though more transitory, produce a sense of duty. Two persons shut up in the same prison, though no way connected but by contiguity and resemblance of condition, are sensible, however, that to aid and comfort each other is a duty incumbent on them. Two persons, shipwrecked upon the same desert island, are sensible of the like mutual duty. And there is even some sense of this kind, among a number of persons in the same ship, or under the same military command.

Thus mutual duties among individuals multiply by variety of connections; and in the progress of society, benevolence becomes a matter of conscience in a thousand instances, formerly disregarded. The duties that arise from connections so slender, are taken under the jurisdiction of a court of equity; which, at first, exercises its jurisdiction with great reserve, interposing in remarkable cases only, where the duty is palpable. But, gathering courage from success, it ventures to enforce this duty in more delicate circumstances: one case throws light upon another: men, by the reasoning of the judges, become gradually more acute in discerning their duty: the judges become more and more acute in distinguishing cases; and this branch of law is imperceptibly moulded into a system. (a) In rude ages, acts of benevolence, however

(a) At curiæ illæ uni viro ne committantur, sed ex pluribus constent. Nec decreta exeant cum silentio: sed judices sententiæ suæ rationes adducant, idque palam, atque adstante corona; ut

peculiar the connection may be, are but faintly perceived to be our duty: such perceptions become gradually more firm and clear by custom and reflection; and when men are so far enlightened, it is the duty as well as honour of judges to interpose*.

This branch of equitable jurisdiction shall be illustrated by various examples. When goods by labour, and perhaps with danger, are recovered from the sea after a shipwreck, every one perceives it to be the duty of the proprietor to pay salvage. A man ventures his life to save a house from fire, and is successful; no mortal can doubt that he is entitled to a recompence from the proprietor, who is benefited. If a man's affairs by his absence be in disorder, ought not the friend who undertakes the management to be kept indemnis, though the subject upon which his money was usefully bestowed, may have afterward perished casually? Who can doubt of the following proposition, That I am in the wrong to demand money from my debtor, while I withhold the sum I owe him, which, perhaps, may be his only resource for doing me justice? Such a proceeding must, in the common sense of mankind, appear partial and oppressive. By the common law, however, no remedy is afforded in this case, nor in the others mentioned. But equity affords a remedy, by enforcing what in such circumstances every man perceives to be his duty. I shall add but one example more: in a violent storm, the heaviest goods are thrown overboard, in order to disburden the ship: the proprietors of

quod ipsa potestate sit liberum, fama tamen et existimatione sit circumscriptum. Bacon de Aug. Scient. lib. 8, cap. 3, aphor. 38. * See Essays on Morality and Natural Religion, Second Edition, p. 108.