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CHAPTER XI 1: The Subject continued. The Courts of Equity. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
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The Subject continued. The Courts of Equity.
However, there are limits to the law fictions and subtilties we mention; and the remedies of the Law cannot by their means be extended to all possible cases that 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 this word Equity, have conceived false notions of the office of the Courts we mention; 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 appear 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 himself only to the law of nature and conscience”: for which definition Dean Swift, and Cowell, who was a Lawyer, are quoted as authorities.2 Other instances might be produced of Lawyers who have been inaccurate in their definitions of the true office 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 Parlia-ment, and thus to controul 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 soon 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 latter 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 Praetors had adopted.
This office of a Judge of Equity, was in time assumed by the Praetor in Rome, in addition to the judicial power he before possessed (a) .3 At the beginning of the year for which he had been elected, the Praetor 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 of experienced Lawyers on the subject. This Declaration (Edictum) the Praetor produced in albo, as the expression was. Modern Civilians have made many conjectures on the real meaning of the above words; one of their suppositions, which is as likely to be true as any other, is, that the Praetor’s Edictum, or heads of new law remedies, were written on a whitened wall, by the side of his Tribunal.
Among the provisions made by the Roman Praetors in their capacity of Judges of Equity, may be mentioned those which they introduced in favour of emancipated Sons, and of Relations by the Women’s side (Cognati), in regard to the right of inheriting. Emancipated Sons were supposed, by the Laws of the Twelve Tables, to have ceased to be the children of their Father, and as a consequence, a legal claim was denied them on the paternal inheritance: Relations by the Women’s side were taken no notice of, in that article of the same laws which treated of the right of succession, mention being only made of relations by the Men’s side (Agnati). The former, the Praetor admitted, by the Edict Unde Liberi, to share their Father’s (or Grandfather’s) inheritance along with their brothers; and the latter he put in possession of the patrimony of a kinsman deceased, by means of the Edict Unde Cognati, when there were no relations by the Men’s side. These two kinds of inheritance were not however called haereditas, but only bonorum possessio; these words being very accurately distinguished, though the effect was in the issue exactly the same (a) .4
In the same manner, the Laws of the Twelve Tables had provided relief only for cases of theft; and no mention was made in them of cases of goods taken away by force (a deed which was not looked upon in so odious a light at Rome as theft, which was considered as the peculiar guilt of slaves). In process of time the Praetor promised relief to such persons as might have their goods taken from them by open force, and gave them an action for the recovery of four times the value, against those who had committed the fact with an evil intention. Si cui dolo malo bona rapta esse dicentur, ei in quadruplum Judicium dabo.5
Again, neither the Law of the Twelve Tables, nor the Laws made afterwards in the Assemblies of the People, had provided remedies except for very few cases of fraud. Here the Praetor likewise interfered in his capacity of Judge of Equity, though so very late as the times of Cicero; and promised relief to defrauded persons, in those cases in which the Laws in being afforded no action. Quae dolo malo facta esse dicentur, si de his rebus alia actio non erit, & justa causa esse videbitur, Judicium dabo(a) .6 By Edicts of the same nature, Praetors in process of time gave relief in certain cases to married Women, and likewise to Minors (Minoribus xxv annis succurrit Praetor, &c. (a) .
The Courts of Equity established in England, have in like manner provided remedies for a very great number of cases, or species of demand, for which the Courts of Common Law, cramped by their forms and peculiar law tenets, can afford none. Thus, the Courts of Equity may, in certain cases, give actions for and against infants, notwithstanding their minority—and for and against married Women, notwithstanding their coverture. Married Women may even in certain cases, sue their husbands before a Court of Equity. Executors may be made to pay interest for money that lies long in their hands. Courts of Equity may appoint Commissioners to hear the evidence of absent witnesses. When other proofs fail, they may impose an oath on either of the Parties; or, in the like case of a failure of proofs, they may compel a trader to produce his books of trade. They may also confirm a title to land, though one has lost his writings, &c. &c.
The power of the Courts of Equity in England, of which the Court of Chancery is the principal one, no doubt owes its origin to the power possessed by this latter, both of creating, and issuing Writs. When new complicated cases offered, for which a new kind of Writ was wanted, the Judges of Chancery, finding that it was necessary that justice should be done, and at the same time being unwilling to make general and perpetual provisions on the cases before them by creating new Writs, commanded the appearance of both Parties, in order to procure as complete information as possible in regard to the circumstances attending the case; and then they gave a decree upon the same by way of experiment.
To beginnings and circumstances like these the English Courts of Equity, it is not to be doubted, owe their present existence. In our days, when such strict notions are entertained concerning the power of Magistrates and Judges, it can scarcely be supposed that those Courts, however useful, could gain admittance. Nor indeed, even in the times when they were instituted, were their proceedings free from opposition; and afterwards, so late as the reign of Queen Elizabeth, it was adjudged in the case of Colleston and Gardner, that the killing of a Sequestrator from the Court of Chancery, in the discharge of his business, was no murder; which judgement could only be awarded on the ground that the Sequestrator’s commission, and consequently the power of his Employers, was illegal (a) .7 However, the authority of the Courts of Equity has in process of time become settled; one of the constituent branches of the Legislature even receives at present appeals from the decrees passed in those Courts; and I have no doubt that several Acts of the whole Legislature might be produced, in which the office of the Courts of Equity is openly acknowledged.
The kind of process that has in time been established in the Court of Chancery, is as follows. After a petition is received by the Court, the person sued is served with a writ of Subpoena, to command his appearance. If he does not appear, an attachment is issued against him; and if a non inventus is returned, that is, if he is not to be found, a proclamation goes forth against him; then a commission of rebellion is issued for apprehending him, and bringing him to the Fleet prison. If the person sued stands farther in contempt, a Serjeant at arms is to be sent out to take him; and if he cannot be taken, a sequestration of his land may be obtained till he appears. Such is the power which the Court of Chancery, as a Court of Equity, hath gradually acquired to compel appearance before it. In regard to the execution of the Decrees it gives, it seems that Court has not been quite so successful; at least, those Law-writers whose Works I have had an opportunity to see, hold it as a maxim, that the Court of Chancery cannot bind the estate, but only the person; and as a consequence, a person who refuses to submit to its decree, is only to be confined to the Fleet prison (a) .8
On this occasion I shall observe, that the authority of the Lord Chancellor, in England, in his capacity of a Judge of Equity, is much more narrowly limited than that which the Praetors in Rome had been able to assume. The Roman Praetors, we are to remark, united in themselves the double office of deciding cases according to the Civil Law (Ius civile), and to the Praetorian Law, or Law of Equity; nor did there exist any other Court besides their own, that might serve as a check upon them: hence it happened that their proceedings in the career of Equity, were very arbitrary indeed. In the first place, they did not use to make it any very strict rule to adhere to the tenor of their own Edicts, during the whole year which their office lasted; and they assumed a power of altering them as they thought proper. To remedy so capital a defect in the distribution of Justice, a law was passed so late as the year of Rome 687 (not long before Tully’s time) which was called Lex Cornelia, from the name of C. Cornelius, a Tribune of the People, who propounded it under the Consulship of C. Piso, and Man. Glabrio.9 By this law it was enacted, that Praetors should in future constantly decree according to their own Edicts, without altering any thing in them during the whole year of their Praetorship. Some modern Civilians produce a certain Senatusconsult to the same effect, which, they say, had been passed a hundred years before; while others are of opinion that the same is not genuine: however, supposing it to be really so, the passing of the law we mention, shews that it had not been so well attended to as it ought to have been.
Though the above mentioned arbitrary proceedings of Praetors were put a stop to, they still retained another privilege, equally hurtful; which was, that every new Praetor, on his coming into office, had it in his power to retain only what part he pleased of the Edicts of his predecessors, and to reject the remainder: from which it followed that the Praetorian Laws or Edicts, though provided for so great a number of important cases, were really in force for only one year, the time of the duration of a Praetor’s office (a) . Nor was a re-gulation made to remedy this capital defect in the Roman Jurisprudence, before the time of the Emperor Hadrian; which is another remarkable proof of the very great slowness with which useful public regulations take place in every Nation. Under the reign of the Emperor we mention, the most useful Edicts of former Praetors were by his order collected, or rather compiled into one general Edict, which was thenceforwards to be observed by all civil Judges in their decisions, and was accordingly called the perpetual Edict (perpetuum Edictum). This Edict, though now lost, soon grew into great repute; all the Jurisconsults of those days vied with each other in writing commentaries upon it; and the Emperor himself thought it so glorious an act of his reign, to have caused the same to be framed, that he considered himself on that account as being another Numa (a) .10
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 (or allowing damages for) those cases of violence by which the proceedings of the Courts of Equity might be opposed; and by that means they have been able to obstruct the enterprizes 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.
Owing to 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 called 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 judgments already passed in these latter, as the Roman Praetors 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 already begun to be taken cognizance of by the Court of Chancery, 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 (a) . 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 those Courts, to serve as rules for future decisions (b) .
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 even can he meddle with those cases for which either the Written or Unwritten Law have already made general provisions, and of which there is a possibility for the ordinary Courts of Law to take cognizance.
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 as 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 bare circumstance 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 new 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 any attempt made professedly to confute the same, nor indeed to point out the nature and true office of the Courts of Equity.
[1. ]This chapter first appeared in the 1781 edition.
[2. ]Samuel Johnson, A Dictionary of the English Language (1755). De Lolme cites one of Johnson’s definitions for chancellor, not his definition for chancery.
[(a) ]The Praetor 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.
[3. ]De Lolme argues for the parallel between the English “Judge of Equity” and the Roman praetor by emphasizing the function of each official in providing new legal remedies to supplement and thereby modify existing law. The account obscures many key institutional differences, particularly the manner in which the praetor did not actually decide cases but rather authorized which cases would be tried before another legal official.
[(a) ]As the power of Fathers, at Rome, was unbounded, and lasted as long as their life, the emancipating of Sons was a case that occurred frequently enough, either for the security, or satisfaction, of those who engaged in any undertaking with them. The power of Fathers had been carried so far by the laws of Romulus, confirmed afterwards by those of the Twelve Tables, that they might sell their Sons for slaves as often as three times, if, after a first or second sale, they happened to acquire their liberty: it was only after being sold for the third time, and then becoming again free, that Sons could be entirely released from the paternal authority. On this law-doctrine was founded the peculiar formality and method of emancipating Sons. A pair of scales, and some copper coin were first brought; without the presence of these ingredients the whole business would have been void: and the Father then made a formal sale of his son to a person appointed to buy him, who was immediately to free, or manumit him: these sales and manumissions were repeated three times. Five witnesses were to be present, besides a Man to hold the scales (Libripens), and another (Antestatus) occasionally to remind the witnesses to be attentive to the business before them.
[4. ]De Lolme refers to praetorian edicts that permitted patterns of inheritance to descendants such as daughters or emancipated sons, who were otherwise excluded from succession under Roman civil law. Bonorum possessio denoted the form of title by which an individual who was not an heir under the civil law held an estate.
[5. ]“If it shall be shown that goods have been forcibly taken from anyone with an evil intention, I will grant him a trial at law, with power to sue for fourfold damages.”
[(a) ]At the same time that the Praetor proffered a new Edict, he also made public those peculiar formulae by which the execution of the same was afterwards to be required from him. The name of that Praetor who first produced the Edict above mentioned, was Aquilius, as we are informed by Cicero, in that elegant story well known to Scholars, in which he relates the kind of fraud that was put upon Canius, a Roman Knight, when he purchased a pleasure-house and gardens, near Syracuse, in Sicily. This account Cicero concludes with observing that Canius was left without remedy, “as Aquilius, his Colleague and friend, had not yet published his formulae concerning fraud.” Quid enim faceret? nondum enim Aquilius, Collega & familiaris meus, protulerat de dolo malo formulas. Off. III. 14. [[De Lolme translates and quotes Cicero’s De officiis (Of duties), book 3, chapter 14.]]
[6. ]“Whatever shall be shown to have been done with an evil intention, I will grant a trial at law to the injured party, provided there is no other legal process applicable to such matters, and the cause shall appear to be just.”
[(a) ]The Law Collection, or System, that was formed by the series of Edicts published at different times by Praetors, was called Ius Praetorium, and also Ius Honorarium (not strictly binding). The laws of the Twelve Tables, together with all such other Laws as had at any time been passed in the Assembly of the People, were called by way of eminence, Ius Civile. The distinction was exactly of the same nature as that which takes place in England, between the Common and Statute Laws, and the law or practice of the Courts of Equity. The two branches of the Praetor’s judicial office were very accurately distinguished; and there was, besides, this capital difference between the remedies or actions which he gave in his capacity of Judge of Civil Law, and those in his capacity of Judge of Equity, that the former, being grounded on the Ius Civile, were perpetual; the latter must be preferred within the year, and were accordingly called Actiones annuae, or Actiones praetoriae; in the same manner as the former were called Actiones civiles, or Actiones perpetuae. [[As the praetor served in office for one year, the validity of his edict was likewise limited to one year. The development of the jus honorarium, however, was a product of the cumulative process by which praetors both maintained earlier edicts (edictum tralaticium) and introduced new ones (edictum perpetuum). De Lolme returns to and clarifies this point below, p. 111, note a.]]
[(a) ]When Sir Edward Coke was Lord Chief Justice of the King’s Bench, and Lord Ellesmere Lord Chancellor, during the reign of James I. a very serious quarrel also took place between the Courts of Law, and those of Equity, which is mentioned in the fourth Chapter of the third Book of Judge Blackstone’s Commentaries; a Work in which more might have been said on the subject of the Courts of Equity. [[Blackstone’s account of the famous 1616 conflict between Coke and Ellesmere appeared in Commentaries on the Laws of England, 3:53–54.]]
[7. ]De Lolme’s account in the text requires some clarification and correction. The law case to which he refers, Colston (or Coulston) v. Gardner, was decided in the Court of Chancery in 1680. The incident to which he refers—the killing of a legal officer (“Sequestrator”) of the Court of Chancery—was not the subject of this case. Rather, the incident was mentioned by Heneage Finch, the Lord Chancellor Nottingham, in his 1680 decree. Nottingham, however, dated the incident to the reign of James I and not to the prior reign of Queen Elizabeth. See Cases Argued and Decreed in the High Court of Chancery, 3 vols. (London, 1730), 2:45.
[(a) ]The Court of Chancery was very likely the first instituted of the two Courts of Equity: as it was the Highest Court in the Kingdom, it was best able to begin the establishment of an office, or power, which naturally gave rise at first to so many objections. The Court of Exchequer, we may suppose, only followed the example of the Court of Chancery: in order the better to secure the new power it assumed, it even found it necessary to bring out the whole strength it could muster; and both the Treasurer and the Chancellor of the Exchequer sit (or are supposed to sit) in the Court of Exchequer, when it is formed as a Court of Equity. [[The Chancery and the Exchequer served as important administrative units of medieval royal government and finance. Chancery was additionally functioning as a court of equity directly under the authority of the Lord Chancellor by the early fifteenth century. The equity practice of the Exchequer was operating by the mid–sixteenth century, though its major growth occurred after 1580.]]
[8. ]Fleet prison was one of several London jails of medieval origin that housed debtors as well as those confined by the Court of Chancery. De Lolme exaggerates the extent to which the modern Chancery was constrained to confine only the person and not the estate of an individual found guilty of contempt.
[9. ]De Lolme refers to the Lex Cornelia de Edictus (67 b.c.e.), which ordered the praetors to administer justice according to the terms of the perpetual edicts.
[(a) ]Those Edicts of their predecessors in office, which the new Praetors thought proper to retain, were called Edicta Tralatitia; those which they themselves published (as also the alterations they made in former ones) were called Edicta Nova. From the above mentioned power exercised by every new Praetor in turn, their Edicts were sometimes distinguished by the appellation of Leges annuae, annual laws. See Orat. in Ver. 1. 42. [[De Lolme cites Marcus Tullius Cicero, Verrine Orations, Second Part of the Speech Against Gaius Verres, book 1, chapter 42 (section 109).]]
[(a) ]Several other more extensive law compilations were framed after the perpetual Edict we mention; there having been a kind of emulation between the Roman Emperors, in regard to the improvement of the Law. At last, under the reign of Justinian, that celebrated Compilation was published, called the Code of Justinian, which, under different titles, comprises the Roman Laws, the Edicts of the Praetors, together with the rescripts of the Emperors; and an equal sanction was given to the whole. This was an event of much the same nature as that which will take place in England, whenever a coalition shall be effected between the Courts of Common Law, and those of Equity, and both shall thenceforwards be bound alike to frame their Judgments from the whole mass of decided cases and precedents then existing, at least of such as it will be possible to bring consistently together into one compilation.
[10. ]Numa Pompilius was the early Roman king and lawgiver traditionally credited as the author of Rome’s pagan religion. Numa ruled from 715 b.c.e. to 673 b.c.e., some eight hundred years before the reign of Emperor Hadrian, 117–138 c.e.
[(a) ]See Cunningham’s and Jacob’s Law Dictionaries, passim. [[For Jacob and Cunningham, respectively, see above, book 1, chapter 10, p. 98, note a, and p. 99, note a.]]
[(b) ]The Master of the Rolls is the Keeper of those records, as the title of this office expresses. His office in the Court of Chancery is of great importance, as he can hear and determine causes in the absence of the Lord Chancellor.