But the courts of equity in England, notwithstanding the extensive jurisdiction they have been able, in process of time, to assume, never superseded the other courts of law. These courts still continue to exist in the same manner as formerly, and have proved a lasting check on the innovations, and in general the proceedings of the courts of equity. And here we may remark the singular, and at the same time effectual, means of balancing each other's influence, reciprocally possessed by the courts of the two different species. By means of its exclusive privilege both of creating and issuing writs, the Court of Chancery has been able to hinder the courts of common law from arrogating to themselves the cognizance of those new cases which were not provided for by any law in being, and thus dangerously uniting in themselves the power of judges of equity with that of judges of common law. On the other hand, the courts of common law are alone invested with the power of punishing will take place in England, whenever a coalition shall be effected between the courts of common law and those of equity, and both shall thenceforward be bound alike to frame their judgments from the whole mass of decided cases and precedents then existing, at least such of it as may be consistently brought together into one compi

lation.

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(or allowing damages for) those cases of violence by which the proceedings of the courts of equity might be opposed; and thus they have been enabled to obstruct the enterprises of the latter, and prevent their effecting in themselves the like dangerous union of the two offices of judges of common law and of equity.

From the situation of the English courts of equity, with respect to the courts of common law, those courts have really been kept within limits that may be said to be exactly defined, if the nature of their functions be considered. In the first place, they can neither touch acts of parliament, nor the established practice of the other courts, much less reverse the judg ments already passed in these latter, as the Roman prætors sometimes used to do in regard to the decisions of their predecessors in office, and sometimes also in regard to their own. The courts of equity are even restrained from taking cognizance of any case for which the other courts can possibly afford remedies. Nay, so strenuously have the courts of common law defended the verge of their frontier, that they have prevented the courts of equity from using in their proceedings the mode of trial by a jury; so that, when, in a case of which the Court of Chancery has already begun to take

cognizance, the parties happen to join issue on any particular fact (the truth or falsehood of which a jury is to determine), the Court of Chancery is obliged to deliver up the cause to the Court of King's Bench, there to be finally decided. In fine, the example of the regularity of the proceedings, practised in the courts of common law, has been communicated to the courts of equity; and rolls or records are carefully kept of the pleadings, determinations, and acts of these courts, to serve as rules for future decisions.*

So far, therefore, from having it in his power "to temper and moderate" (that is, to alter) the written law or statutes, a judge of equity, we find, cannot alter the unwritten law, that is to say, the established practice of the other courts, and the judgments grounded thereupon; nor can he even meddle with those cases for which either the written or unwritten law has already made general provisions, and of which there is a possibility for the ordinary courts of law to take cognizance.

* The master of the rolls is the keeper of these records, as the title of the office expresses. His employment in the Court of Chancery is of great importance, as he can hear and determine causes in the absence of the lord chancellor.

From all the above observations it follows, that of the courts of equity, as established in England, the following definition may be given, which is, that they are a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature have yet found it convenient or practicable to establish any; in doing which, they are to forbear to interfere with such cases as they find already in general provided for. A judge of equity is also to adhere, in his decisions, to the system of decrees formerly passed in his own court, regular records of which are kept for that purpose.

From this latter circumstance it again follows, that a judge of equity, by the very exercise he makes of his power, is continually abridging the arbitrary part of it; as every

new

case he determines, every precedent he establishes, becomes a land-mark or boundary which both he and his successors in office are afterwards expected to regard.

Here it may be added as a conclusion, that appeals from the decrees passed in the courts of equity are carried to the house of peers; which circumstance alone might suggest that

a judge of equity is subjected to certain positive rules, besides those "of nature and conscience only;" an appeal being naturally grounded on a supposition that some rules of that kind were neglected.

The above discussion on the English law has proved much longer than I intended at first; so much as to have swelled, I find, into two additional chapters. However, I confess I have been under the greater temptation to treat at some length the subject of the courts. of equity, as I have found the error (which may be called a constitutional one) concerning the arbitrary office of those courts, to be countenanced by the apparent authority of lawyers, and of men of abilities, at the same. time that I have not seen in any book an attempt made professedly to confute the same, or indeed to point out the nature and true office of the courts of equity.

CHAPTER XII.

Of Criminal Justice.

WE are now to treat of an article, which, though it does not in England, and indeed should not in any state, make part of the