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law. A very remarkable expedient of that sort occurs in the method generally used to sue for the payment of certain kinds of debt, before the Court of Common Pleas ; such (if I mistake not) as a salary for work done, indemnity for fulfilling orders received, &c. The writ issued in these cases is grounded on the supposition, that the person sued has trespassed on the ground of the plaintiff, and broken, by force of arms, through his fences and inclosures; and,
and, under this predicament, the defendant is brought before the court : this species of writ which lawyers have found of most convenient use, to introduce before a court of common law the kinds of claim we mention, is called in technical language a clausum fregit. In order to bring a person before the Court of King's Bench, to answer demands of much the same nature with those above, a writ, called a latitat, is issued, in which it is taken for granted that the defendant insidiously conceals himself, and is lurking in some county, different from that in which the court is sitting; the expressions used in the
“ that he runs up and down and “ secretes himself ;” though no such fact is seriously meant to be advanced either by the attorney or the party.
The same principle of strict adherence to certain forms long since established, has also caused lawyers to introduce into their proceedings fictitious names of persons, who are supposed to discharge the office of sureties; and in certain cases, it seems, the name of a fictitious person is introduced in a writ with that of the principal defendant, as being joined in a common cause with him. Another instance of the same high regard of lawyers, and judges too, for certain old forms, which makes them more unwilling to depart from such forms than from the truth itself of facts, occurs in the above-mentioned expedient used to bring ordinary causes before the Court of Exchequer, in order to be tried there at common law; which is, by making a declaration that the plaintiff is a king's debtor, though neither the court, nor the plaintiff's attorney, lay any serious stress on the assertion.
The Subject continued. The Courts of Equity. HOWEVER, there are limits to these fictions and subtilties; and the remedies of the law cannot by their means be extended to all
cases that may arise, unless too many absurdities are suffered to be accumulated; nay, there have been instances in which the improper application of writs, in the courts of law, has been checked by authority. In order therefore to remedy the inconveniences we mention—that is, in order to extend the administration of distributive justice to all possible cases by freeing it from the professional difficulties that have gradually grown up in its way-a new kind of courts has been instituted in England, called Courts of Equity.
The generality of people, misled by the word equity, have conceived false notions of the office of these courts; and it seems to be generally thought, that the judges who sit in them are only to follow the rules of natural equity ; by which people seem to understand, that, in a court of equity, the judge may follow the dictates of his own private feelings, and ground his decisions, as he thinks proper, on the peculiar circumstances and situation of those persons who make their appearance before him. Nay, doctor Johnson (in his abridged dictionary) gives the following definition of the power of the Court of Chancery, considered as a court of equity :
- The "chancellor hath power to moderate and
temper the written law, and subjecteth him"self only to the law of nature and con" science :” for which definition, dean Swift, and Cowell, who was a lawyer, are quoted as authorities. Other instances might be produced of lawyers who have been inaccurate in their definitions of the true offices of the judges of equity. And the above-named doctor himself is on no subject a despicable authority.
Certainly the power of the judges of equity cannot be to alter, by their own private power, the written law, that is, acts of parliament, and thus to control the legislature. Their office only consists, as will be proved in the sequel, in providing remedies for those cases for which the public good requires that remedies should be provided, and in regard to which the courts of common law, shackled by their original forms and institutions, cannot procure any :-or, in other words, the courts of equity have a power to administer justice to individuals, unrestrained (not by the law, but) by the professional law difficulties, which lawyers have from time to time contrived in the courts of common law, and to which the judges of those courts have given their sanction.
An office of the kind here mentioned was boon found necessary in Rome, for reasons of
the same nature with those above delineated. For, it is remarkable enough, that the body of English lawyers, by refusing admittance to the code of Roman laws, as it existed in the later times of the empire, have only subjected themselves to the same difficulties under which the old Roman jurisconsults laboured, during the time they were raising the structure of those same laws. And it may also be observed, that the English lawyers, or judges have fallen upon much the same expedients as those which the Roman jurisconsults and prætors had adopted.
This office of a judge of equity, was, in time, assumed by the prætor in Rome, in addition to the judicial power he before possessed. * At the beginning of the year for which he had been elected, the prætor made a declaration of those remedies for new difficult cases, which he had determined to afford during the time of his magistracy; in the choice of which he was no doubt directed, either by his own observations (while out of office) on the propriety of such remedies, or by the suggestions
* The prætor thus possessed two distinct branches of judicial authority, in the same manner as the Court of Exchequer does in England, which occasionally sits as a court of common law, and a court of equity.