process of an action began by certain writs or documents of prescribed form, which were issued from the King's Chancery, on application made there; and which brought the action into the Courts of Common Law. The Chancellor, therefore, (according to Lord Hardwicke,) when any petition for such a writ was referred to him, was the most proper judge, whether such a writ could be framed and issued, as might furnish an adequate relief to the party; and if he found the Common Law remedies deficient, he might proceed according to the extraordinary power committed to him by the reference*; "Ne Curia Regis deficeret in justitiâ exercendâ." Thus the exercise of an equitable jurisdiction by the Chancellor, arose from his being the Officer to whom applications were made, for writs on which to ground actions at the Common Law. Where that Law afforded no remedy, he was led to extend a discretionary remedy; and thus, the forum of Common Law and the forum of Equity were separated in England †. 406 It is not necessary to prosecute further our account of Jurisprudential Equity; since our business is rather with Moral Equity. And by tracing the course of the development of this Conception, as we have now stated it, we are able to give a connected account of this moral quality. We may accept, as a starting point, Aristotle's Definition: Equity is a Correction of Law where it is defective by reason of its universality. But Equity itself must proceed by fixed Laws, otherwise it would be defective in consistency. As the Rules of Equity thus become fixed, Equity ceases to be able to correct all the defects of Law; and becomes itself, as Law was at first, an imperfect expression of Justice; and thus we have, in the notion of Equity, a recognition of two Maxims to a certain extent opposite to each other; that Fixed Rules are requisite for the expressions of Justice; and that No Fixed Rules can so completely express Justice, but that the conception of Justice will, in some particular cases, seem to require exceptions to the Rules. 407 The administration of Equity has led to the currency of many Maxims, which may be considered Maxims of Moral, as well as Jurisprudential Equity; since their acceptance in the Courts of Law has been due to their presumed agreement with Justice. We may notice some of these Maxims; not as being always universally true, or free from doubt and difficulty in their application; but as bringing forwards some of the points on Lest the King's Court should be + Story, Eq. 44. deficient in administering justice. which Equity must principally depend; and as showing, by examples, the kind of Equality in which it consists. Among such maxims are the following. 408 Equitas sequitur Legem; "Equity follows the Law." And this may be understood in two senses; either that Equity is based upon the Relations which the Law establishes; or that Equity follows the Analogy of the Law. We have already said, that Justice assumes the Definitions of Rights which Law gives. Hence Equity supposes that to be a man's Property, that to be a Marriage, that to be a Contract, which the Law makes such. Yet if there be merely some formal defect in a contract, moral Equity will still hold it valid. Again, Equity follows the Analogy of Law; thus in England, where the Law gives the whole landed property to the eldest son, that would not be an equitable decision which should divide the property amongst the children equally. 409 In equali jure melior est conditio possidentis; “Where Rights are equal, Possession is a ground of preference." As if two persons have been equally innocent and equally diligent, the one in trying to recover a property lost by fraud; the other in transacting a bonâ fide purchase of the property; he who is in possession is preferred. But there are other maxims, which throw the task of judging of deficiencies in the property on one side especially for instance, in matters which are apparent on due examination, the Rule is Caveat emptor, Let the buyer take care of himself. 410 Qui sentit onus, sentire debet et commodum; qui sentit commodum, sentire debet et onus; "He who bears the burthen ought to receive the profit; he who reaps the profit ought to bear the burthen." Thus, if a man, dying, leaves his wife pregnant, so that it is uncertain who will be heir to his lands; if the next presumptive heir, in the mean time, sow the land, it is equitable that the harvest also shall be his. And on the other hand, they who enjoy the benefit of any improvement of land arising from public works; as, for instance, from a general drainage; ought to contribute to the expense of the works. 411 There are other maxims which refer to the general responsibility of actions, as for instance, Necessitas non habet legem; "Necessity has no law;" which we have referred to in speaking of cases of necessity (321). And again: Qui facit per alium facit per se; "What a man does through the agency of others is his act." Others refer to the mode of interpreting Laws or Contracts, and administering Justice: as, Expressio unius est exclusio alterius; "The mention of one person is the exclusion of another." Nemo debet esse judex in propriâ causâ; “A man is not to be judge in his own cause." All these maxims may be looked upon as indications and fragments of a supposed Natural Law; which can never be expressed except by indications and fragments; since, as we have said, no Rules can express Equity, so as not to require exceptions. 412 Other indications of the assumed existence of a Natural Law, the necessary result of Justice and Equity, may be traced in expressions, which are often used in moral and political discussions. Thus, we hear of the Natural Rights of man; and as examples of these, of the Right to Subsistence, the Right to Freedom, and the like. In speaking of these Rights as Natural, it is not meant that they are universally recognized by the Laws of States. In truth, Rights of the citizens to Subsistence and to Freedom, are so far limited and modified by the Laws of most States, that they can hardly be said to exist as general Rights. By speaking of such Rights, and describing them as the dictates of Natural Justice, as is often done, it is meant that the Laws ought to recognize and establish them. But something more than this seems to be meant, by speaking of the Natural Right to Subsistence, and the like; for to say that such a Right is what the Law ought to establish, is merely to class the recognition of this Right with all the other prudential improvements, of which the Laws of any State are susceptible. The Laws ought to aim at securing the Purity and Rationality, as well as the Subsistence, of the people. By speaking of the Claim of men to Subsistence as a Right, it appears to be meant that it is not only conformable to the Duty of States, in the general sense in which it is their Duty to make their laws constantly better; but that it is conformable to Justice in some more special sense, in which Justice is expressed by definite and universal Principles. 413 Yet the Principles of Justice which have been propounded as the basis of the Natural Rights of Men, are such as it is difficult to establish, in a definite and universal form. It has, for instance, been said, that All men are born equal. But it is evident that this is not true as a fact. For not only are children, for a long time after birth, necessarily in the power of parents and others; but the external conditions of the society in which a man is born, as the laws of property and the like, determine his relation to other men, during life. If it be said that these are extraneous and accidental circumstances, not born with the man ; we answer, that if we reject from our consideration, as extraneous and accidental, all such conditions, there remains nothing which we can call intrinsic and necessary, but the material conditions of man's existence; and if we were to adopt this view, the principle might more properly be stated, All men are equally born. The relations of Family, Property, and the like, are as essential to man's moral being, as Language, without which his mind cannot be unfolded to the apprehension of Rules, and the distinction of right and wrong. If therefore our assumed equality rejects the former circumstances, it must reject the latter. 414 But though in Fact men are not born equal, they are all born with a capacity for being moral agents: and this Idea is the basis of all Morality. And we may lay it down as a universal Principle, from which we may hereafter reason, that All men are moral beings. This Principle may be perhaps considered as rather a Principle of Humanity, than a Principle of Justice. For this, and any other Principle from which we derive the claims of men to Subsistence, Freedom, &c., must involve a recognition of that Common Human Nature, by which all mankind are bound together. We shall therefore treat of such Rights in treating of the Conception of Humanity. CHAPTER XXIII. HUMANITY. 415 IT has already been stated, that a universal Benevolence towards all men, as partakers of the same Common Human Nature with ourselves, is a part of the Supreme Law of human being. But the lapse of time, the growth of institutions, and the development of man's moral nature, are requisite to bring this affection into its due prominence. The affections of men, in a rude condition, are confined within narrower limits; and have, for their main or sole objects, the persons who are bound to them by especial ties. The family affections which connect parent and child, husband and wife, brothers and sisters, have their force in every form of human society. The sympathies which bind together a kindred in a wider sense, the feelings of clanship, are powerful, in communities in which a more comprehensive kind of benevolence is unfelt. In rude and half-savage tribes, in which clansmen assist each other with unbounded zeal, the stranger is looked upon as naturally an object of enmity. The historians of Greece and Rome notice indications of this having been the early condition of man's feelings in those countries. But the progress of the culture of those nations led to a more moral state of the affections. The Greeks had a name for the Love of man as man. This affection they termed piλav@pwπía, and reckoned it a virtue. Aristotle expresses this by saying that all men have a feeling of kindred and good-will to all. And the Stoics called this tie of general good-will by a name borrowed from the word which Aristotle here uses (oikeiwois), as kindness is connected with the word kin. The Romans in like manner, though at first they had but one word to designate a stranger and an enemy (hostis), came to be sensible of the universal bond of good-will which unites man to man. They received with applause the verse of Terence : Homo sum: humani nihil a me alienum puto. A man am 1, and feel for all mankind. And their philosophers followed the Greeks, in assuming the common social feeling of mankind as one of the foundations of their morality. Thus Cicero adopts, what he calls the Formula of the Stoicst: "Detrahere aliquid alicui, et hominem hominis incommodo suum augere commodum, magis est contra naturam quam mors, quam paupertas, quam cætera quæ possunt aut corpori accidere, aut rebus externis; nam principio tollit convictum humanum et societatem." In the same strain Seneca says, "Societatem tolle, et unitatem generis humani quâ vita continetur, scindes." 416 The Roman conception, of a Law, identical with Natural Law, and yet the benefits of which were the peculiar privilege of Roman citizens, for a time impeded the application of such maxims; for men who had no right to justice, could have little claim to kindness. The current conception of a true marriage, as being limited to the union of Roman citizens, and of domestic slavery as being a part of the order of society, were circumstances unfavour Anth. Eth. Nic. VIII. 1. ὡς οἰκεῖον ἅπας ἄνθρωπος ἀνθρώπῳ καὶ φίλον. + Off. III. 5. For a man to abstract anything from another man, and to increase his own comfort by the discomfort of another, is more against Nature, than death, than poverty, than any other thing which can happen, either to his body or to his external havings. For in |