cept in cases which involve circumstances to which a Court of Law cannot advert. Equity, as we have said, has its Maxims; and one of the first of these Maxims is*, Equitas sequitur Legem; Equity follows the Law. 500. Nor does Jurisprudential Equity fill up the measure of the description of Moral Equity, that it abates the rigour of the Law. Blackstone has shown how far this is from being a description of the Equity of English Courts. No such power of abating the rigour of Law, he says, is contended for by the Court of Chancery†. The Law is rigorous, which declares that land which a man bequeaths to a legatee shall not, after his death, be liable to simple contract debts, even if the debt be for money employed in purchasing this very land. The Law is rigor ous which commands that the father shall never immediately succeed as heir to the land of the son: yet in these cases, a Court of Equity can give no relief. Jurisprudential Equity, therefore, does not extend to Cases of legal hardship in general. 501. In a certain sense, however, and to a certain extent, Equity does supply defects in the Law. Equity, as a branch of Jurisprudence, must, like all branches of Jurisprudence, act by definite Processes, and according to fixed Rules. But the Processes and the Rules of Equity Jurisprudence, came into being, at first, as remedies to the defects of Law: and though, by being reduced to a fixed form and settled maxims, they can no longer be appealed to as remedies for all hardships and defects of Law, they have still a remedial and suppletory character. This agrees with the account which the best authorities give of the origin of the Equitable Jurisdiction of the Court of Chancery in England. In the Common or traditional Law of England, the process of an action began by certain writs or documents of * Story + Comm. III. 430. Eq. 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 Čuria 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 Englandt. 502. 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 * Lest the King's Court should be deficient in administering justice. + Story. Eq. 44. other; that Fixed Rules are requisite for the expression 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. 503. 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 which Equity must principally depend; and as showing, by examples, the kind of Equality in which it consists. Among such maxims are the following. 504. 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. 505. 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 dilligent, the one in trying to recover a property lost by fraud; the other in transacting a bona 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 (172). 506. 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. 507. 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 (418). 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. 508. Other Indications of the assumed existence of a Natural Law, the necessary result of Jus tice 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. 509. 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 borñ 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 |