Principles of Equity. Henry Home, Lord Kames
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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, <9> 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 <10> system.a In rude
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ages, acts of benevolence, however 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 intitled to a recompence from the proprietor, who is benefited. If a man’s affairs by his absence be in <11> disorder, ought not the friend who undertakes the management to be kept indemnis,6 though the subject upon which his money was usefully bestowed may have afterward perished casually?7 Who can doubt of the following proposition, That I am in the wrong to demand money from my debtor, while I with-hold 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 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 <12> 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
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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 <13> 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 defect 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.8 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 <14> cause, it cannot fail to appear singular, that a court
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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 bond9 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 constitution 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 <15> covenants altogether from the common law, or to impower 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
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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 <16> 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 by those immediately concerned. The illustrious Bacon, upon this subject, expresses himself with great propriety: “Habeant curiae praetoriae potestatem tam subveniendi contra rigorem legis, quam supplendi defectum legis. Si enim porregi debet remedium ei quem lex praeteriit, multo magis ei quem vulneravit.”*
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 <17> 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:10