occasion of assuming the office of Chancellor, says, "Chancery is ordained to supply the Law, not to subvert the Law" and Chancellor Finch says, that the nature of Equity is to amplify, enlarge, and add to the letter of the Law. This has sometimes been stated by saying, that Equity decidest "de rebus quas Lex non exacté definit, sed arbitrio boni viri permittit.'

498. But this description of Equity is too vague to be applicable; and has not been really accepted and acted upon in the administration of Justice, either in Rome or in England. For a Justice, administered, not according to Rules, but according to the immediate aspect of each case, would be deficient in the first requisite of Justice, that of being consistent with itself. We have already said (339), that Rules are necessary in Morality, to subdue the temptations of special cases; they are especially necessary as regards Justice, to correct the delusive aspect of particular cases. To leave the decision of cases to the conscience of the Judge, however wise and good, would lead to those arbitrary decisions which Justice especially abhors. In this view, Selden's condemnation of Equity is deserved‡; "For Law we have a measure, and we know what to trust to. Equity is according to the Conscience of him who is Chancellor; and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be!" Since Morality is governed by fixed Rules, Equity, which is a part of Morality, must also have its fixed Rules. And as the Rules of Law are the foundations of Justice, the Rules of Equity cannot be in general inconsistent with those of Law.

* Bacon's Works, iv. 488.

+ Grot. De Equitate. Concerning things which the Law does not exactly define, but leaves to the discretion of a good man.

+ Table Talk.

499. Accordingly, the Prætor's power did not extend to the overthrow or disregard of the written Law. When the law was applicable, the Prætor was to stand by it*; and we find such remarks as this+: "Quod quidem perquam durum est; sed ita lex scripta est." Nor does a Court of Equity in England decide differently from a Court of Law, except 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 ist, 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 rigorous 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

+ Dig. XL. ix. 12. 1. This is very hard: but this is the written law.

Story. Eq.

§ Comm. 111. 430.

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 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†.

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 defec

* Lest the King's Court should be deficient in administering justice. + Story. Eq. 44.

tive 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 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.

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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 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 (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