Principles of Equity. Henry Home, Lord Kames
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its proper sense as opposed to involuntary. A deed in the English law is said to be voluntary when it is granted without a valuable consideration. In this sense it is the same with gratuitous in our law.
Wadset, answers to a mortgage in the English law. A proper wadset is where the creditor in possession of the land takes the rents in place of the interest of the sum lent. An improper wadset is where the rents are applied for payment, first of the interest, and next of the capital.
Writer, scrivener.
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IN TWO VOLUMES.
VOL. I.
EDINBURGH:
Printed for J. BELL, and W. CREECH, Edinburgh; and T. CADELL, London. MDCCLXXVIII.
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Equity, scarce known to our forefathers, makes at present a great figure. It has, like a plant, been tending to maturity, slowly indeed, but constantly; and at what distance of time it shall arrive at perfection, is perhaps not easy to foretell. Courts of equity have already acquired such an extent of jurisdiction, as to obscure in a great measure courts of law.1 A revolution so signal, will move every curious enquirer to attempt, or to wish at least, a discovery of the cause. But vain will be the attempt, till first a clear idea be formed of the difference between a court of law and a court of equity. The former we know follows precise rules: but does the latter act by conscience solely without any rule? This would be unsafe while men are the judges, liable no less to partiality than to error: nor could a court without rules ever have attained that height of favour, and extent <2> of jurisdiction, which courts of equity enjoy. But if a court of equity be governed by rules, why are not these brought to light in a system? One would imagine, that such a system should not be useful only, but necessary; and yet writers, far from aiming at a system, have not even defined with any accuracy what equity is, nor what are its limits and extent. One operation of equity, universally acknowledged, is, to remedy imperfections in the common law, which sometimes is defective, and sometimes exceeds just bounds; and as equity is constantly opposed to common law, a just idea of the latter may probably
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lead to the former. In order to ascertain what is meant by common law, a historical deduction is necessary; which I the more chearfully undertake, because the subject seems not to be put in a clear light by any writer.
After states were formed and government established, courts of law were invented to compel individuals to do their duty. This innovation, as commonly happens, was at first confined within narrow bounds. To these courts power was given to enforce duties essential to the <3> existence of society; such as that of forbearing to do harm or mischief. Power was also given to enforce duties derived from covenants and promises, such of them at least as tend more peculiarly to the well-being of society: which was an improvement so great, as to leave no thought of proceeding farther; for to extend the authority of a court to natural duties of every sort, would, in a new experiment, have been reckoned too bold. Thus, among the Romans, many pactions were left upon conscience, without receiving any aid from courts of law: buying and selling only, with a few other covenants essential to commercial dealing, were regarded.2 Our courts of law in Britain were originally confined within still narrower bounds: no covenant whatever was by our forefathers countenanced with an action: a contract of buying and selling was not;* and as buying and selling is of all covenants the most useful in ordinary life, we are not at liberty to suppose that any other was more privileged.† <4>
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
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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 <5> 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 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 <6> council to be gradually assumed by other sovereign courts. The establishment of the court of chancery 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 aequum et bonum,3 or according to what the judge in conscience thinks
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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 <7> not ascertained by any natural rule, the jurisdiction of common law must depend in a great measure upon accident and 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 Britain4 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.5
Among a plain people, strangers to refinement and subtilties, 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 <8> 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:
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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