the goods, preserved by this means from the sea, must be sensible that it is their duty to repair the loss; for the man who has thus abandoned his goods for the common safety, ought to be in no worse condition than themselves. Equity dictates this to be their duty; and if they be refractory, a court of equity will interpose in behalf of the sufferer.

It appears now clearly, that a court of equity commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus, a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for at common law.

The duties hitherto mentioned, arise from connections independent altogether of consent. Covenants and promises also, are the source of various duties. The most obvious of these duties, being commonly declared in words, belong to common law. But every incident that can possibly occur in fulfilling a covenant, is seldom foreseen; and yet a court of common law, in giving judgment upon covenants, considers nothing but declared will, neglecting incidents that would have been provided for, had they been foreseen, Further, the inductive motive for making a covenant, and its ultimate purpose and intendment, are circumstances disregarded at common law: these, however, are capital circumstances; and justice, where they are neglected, cannot be fulfilled. Hence the powers of a court of equity, with respect to engagements. It supplies imperfections in common law, by taking under consideration every material circumstance, in order that justice may be distributed in the most perfect manner. It supplies a de

fect in words, where will is evidently more extensive: it rejects words that unwarily go beyond will; and it gives aid to will where it happens to be obscurely or imperfectly expressed. By taking such liberty, a covenant is made effectual, according to the aim and purpose of the contractors; and without such liberty, seldom it happens that justice can be accurately distributed.

In handling this branch of the subject, it is not easy to suppress a thought that comes cross the mind. The jurisdiction of a court of common law, with respect to covenants, appears to me odd and unaccountable. To find the jurisdiction of this court limited, as above mentioned, to certain duties of the law of nature, without comprehending the whole, is not `singular nor anomalous. But with respect to the circumstances that occur in the same cause, it cannot fail to appear singular, that a court should be confined to a few of these circumstances, neglecting others no less material in point of justice. This reflection will be set in a clear light by a single example. Every one knows, that an English double bond was a contrivance to evade the old law of this island, which prohibited the taking interest for money; the professed purpose of this bond is, to provide for interest and costs, beyond which the penal part ought not to be exacted; and yet a court of common law, confined strictly to the words or declared will, is necessitated knowingly to commit injustice. The moment the term of payment is past, when there cannot be either costs or interest, this court, instead of pronouncing sentence for what is really due, namely, the sum borrowed, must follow the words of the bond, and give judgment for the double. This defect in the consti

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tution of a court, is too remarkable to have been overlooked a remedy, accordingly, is provided, though far from being of the most perfect kind; and that is, a privilege to apply to the court of equity for redress. Far better had it been, either to withdraw covenants altogether from the common law, or to empower the judges of that law to determine according to the principles of justice. (a) I need scarce observe, that the present reflection regards England only, where equity and common law are appropriated to different courts. In Scotland, and other countries where both belong to the same court, the inconvenience mentioned cannot happen.- -But to return to the gradual extension of equity, which is our present theme:

A court of equity, by long and various practice, finding its own strength and utility, and impelled by the principle of justice, boldly undertakes a matter still more arduous; and that is, to correct or mitigate the rigour, and what even in a proper sense may be termed, the injustice of common law. It is not in human foresight to establish any general rule, that, however salutary in the main, may not be oppressive and unjust in its application to some singular cases. Every work of man must partake of the imperfection of its author; sometimes falling short of its purpose, and sometimes going beyond it. If, with respect to the former, a court of equity be useful, it may be pronounced necessary with respect to the latter; for, in society, it is certainly a greater object to prevent legal oppression, which alarms every individual, than to supply legal defects, scarce regarded but

(a) And accordingly, by 4o Annæ, cap. 16, sect. 13, the defendant, pending action on a double bond, offering payment of principal, interest, and costs, shall be discharged by the court.

by those immediately concerned. The illustrious Bacon, upon this subject, expresses himself with great propriety:" Habeant curiæ prætoriæ potestatem "tam subveniendi contra rigorem legis, quam supplendi defectum legis. Si enim porregi debet re"medium ei quem lex præteriit, multo magis ei quem vulneravit.” *

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All the variety of matter hitherto mentioned is regulated by the principle of justice solely. It may, at first view, be thought, that this takes in the whole compass of law, and that there is no remaining field to be occupied by a court of equity. But, upon more narrow inspection, we find a number of law-cases into which justice enters not, but only utility. Expediency requires that these be brought under the cognisance of a court; and the court of equity, gaining daily more weight and authority, takes naturally such matters under its jurisdiction. I shall give a few examples. A lavish man submits to have his son made his interdictor: this agreement is not unjust;' but, tending to the corruption of manners, by reversing the order of nature, it is reprobated by a court of equity, as contra bonos mores. This court goes farther it discountenances many things in themselves indifferent, merely because of their bad tendency. A pactum de quota litis is in itself innocent, and may be beneficial to the client as well as to the advocate: but to remove the temptation that advocates are under to take advantage of their clients instead of serving them faithfully, this court declares against such pactions. A court of equity goes still farther, by consulting the public interest with relation

De Aug. Scient. lib. 8, cap. 3, aphor. 45.

to matters not otherwise bad, but by occasioning unnecessary trouble and vexation to individuals. Hence the origin of regulations tending to abridge lawsuits.

A mischief that affects the whole community, figures in the imagination, and naturally moves judges to stretch out a preventive hand. But what shall we say of a mischief that affects one person only, or but a few? An estate, for example, real or personal, is left entirely without management, by the infancy of the proprietor, or by his absence in a remote country: he has no friends, or they are unwilling to interpose. It is natural, in this case, to apply for public authority. A court of common law, confined within certain precise limits, can give no aid; and, therefore, it is necessary that a court of equity should undertake cases of this kind; and the preventive remedy is easy, by naming an administrator, or, as termed in the Roman law, curator bonorum. A similar example is, where a court of equity gives authority to sell the land of one under age, where the sale is necessary for payment of debt: to decline interposing, would be ruinous to the proprietor; for, without authority of the court, no man will venture to purchase from one under age. Here the motive is humanity to a single individual; but it would be an imperfection in law, to abandon an innocent person to ruin, when the remedy is so easy. In the cases governed by the motive of public utility, a court of equity interposes as a court properly, giving or denying action, in order to answer the end purposed; but in the cases now mentioned, and in others similar, there is seldom occasion for a process; the court acts by magisterial powers.

The powers above set forth assumed by our courts