Principles of Equity. Henry Home, Lord Kames

this agreement is not unjust; but, tending to the corruption of manners, by reversing the order of nature, it is reprobated by a court of equity, as contra bonos mores.¹¹ This court goes farther: it discountenances many things in themselves indifferent, merely because of their bad tendency. A pactum de

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      quota litis¹² is in itself innocent, and may be beneficial to the client as well as to the advocate: but to remove the temptation that advocates are under to take advantage of their clients instead of serving them faithfully, this court declares against such pactions. A court of equity goes still farther, by consulting the public interest with relation to matters not otherwise bad but by occasioning unnecessary trouble and vexation to individuals. Hence the origin of regulations tending to abridge law-suits. <18>

      A mischief that affects the whole community, figures in the imagination, and naturally moves judges to stretch out a preventive hand. But what shall we say of a mischief that affects one person only, or but a few? An estate, for example, real or personal, is left entirely without management, by the infancy of the proprietor, or by his absence in a remote country: he has no friends, or they are unwilling to interpose. It is natural, in this case, to apply for public authority. A court of common law, confined within certain precise limits, can give no aid; and therefore it is necessary that a court of equity should undertake cases of this kind; and the preventive remedy is easy, by naming an administrator, or, as termed in the Roman law, curator bonorum.¹³ A similar example is, where a court of equity gives authority to sell the land of one under age, where the sale is necessary for payment of debt: to decline interposing, would be ruinous to the proprietor; for without authority of the court no man will venture to purchase from one under age. Here the motive is humanity to a single individual: but it would be an <19> imperfection in law, to abandon an innocent person to ruin, when the remedy is so easy. In the cases governed by the motive of public utility, a court of equity interposes as court properly, giving or denying action, in order to answer the end purposed: but in the cases now mentioned, and in others similar, there is seldom occasion for a process; the court acts by magisterial powers.

      The powers above set forth assumed by our courts of equity, are, in effect, the same that were assumed by the Roman Praetor,¹⁴ from necessity,

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      without any express authority. “Jus praetorium est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris Civilis gratia, propter utilitatem publicam.”^*

      Having given a historical view of a court of equity, from its origin to its present extent of power and jurisdiction, I proceed to some other matters, which must be premised before entering into particulars. The first I shall insist on is of the greatest moment, namely, Whether a court of <20> equity be, or ought to be, governed by any general rules? To determine every particular case according to what is just, equal, and salutary, taking in all circumstances, is undoubtedly the idea of a court of equity in its perfection; and had we angels for judges, such would be their method of proceeding, without regarding any rules: but men are liable to prejudice and error, and for that reason cannot safely be trusted with unlimited powers. Hence the necessity of establishing rules, to preserve uniformity of judgment in matters of equity as well as of common law: the necessity is perhaps greater in the former, because of the variety and intricacy of equitable circumstances. Thus, though a particular case may require the interposition of equity to correct a wrong or supply a defect; yet the judge ought not to interpose, unless he can found his decree upon some rule that is equally applicable to all cases of the kind. If he be under no limitation, his decrees will appear arbitrary, though substantially just: and, which is worse, will often be arbitrary, and substantially unjust; for such too frequently are human proceedings <21> when subjected to no control. General rules, it is true, must often produce decrees that are materially unjust; for no rule can be equally just in its application to a whole class of cases that are far from being the same in every circumstance: but this inconvenience must be tolerated, to avoid a greater, that of making judges arbitrary. A court of equity is a happy invention to remedy the errors of common law: but this remedy must stop somewhere; for courts cannot be established without end, to be checks one upon another. And hence it is,

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      that, in the nature of things, there cannot be any other check upon a court of equity but general rules. Bacon expresses himself upon this subject with his usual elegance and perspicuity: “Non sine causa in usum venerat apud Romanos album praetoris, in quo praescripsit et publicavit quomodo ipse jus dicturus esset. Quo exemplo judices in curiis praetoriis, regulas sibi certas (quantum fieri potest) proponere, easque publice affigere, debent. Etenim optima est lex, quae minimum relinquit arbitrio <22> judicis, optimus judex qui minimum sibi.”^*

      In perusing the following treatise, it will be discovered, that the connections regarded by a court of equity seldom arise from personal circumstances, such as birth, resemblance of condition, or even blood, but generally from subjects that in common language are denominated goods. Why should a court, actuated by the spirit of refined justice, overlook more substantial ties, to apply itself solely to the grosser connections of interest? doth any connection founded on property make an impression equally strong with that of friendship, or blood-relation, or of country? doth not the law of nature form duties on the latter, more binding in conscience than on the former? Yet the more conscientious duties are left commonly to shift for themselves, while the duties founded on interest are supported and enforced by courts of equity. This, at first view, looks like a prevailing attachment to riches; but it is not so in reality. The duties arising from the connection last <23> mentioned, are commonly ascertained and circumscribed, so as to be susceptible of a general rule to govern all cases of the kind. This is seldom the case of the other natural duties; which, for that reason, must be left upon conscience, without receiving any aid from a court of equity. There are, for example, not many duties more firmly rooted in our nature than that of charity; and, upon that account, a court of equity will naturally be tempted to interpose in its behalf. But the extent of this duty depends on such a variety of circumstances, that the

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      wisest heads would in vain labour to bring it under general rules: to trust, therefore, with any court, a power to direct the charity of individuals, is a remedy which to society would be more hurtful than the disease; for instead of enforcing this duty in any regular manner, it would open a wide door to legal tyranny and oppression. Viewing the matter in this light, it will appear, that such duties are left upon conscience, not from neglect or insensibility, but from the difficulty of a proper remedy. And when such duties can be brought under a general rule, I except not even <24> gratitude, though in the main little susceptible of circumscription, we shall see afterward, that a court of equity declines not to interpose.

      In this work will be found several instances where equity and utility are in opposition; and when that happens, the question is, Which of them ought to prevail? Equity, when it regards the interest of a few individuals only, ought to yield to utility when it regards the whole society. It is for that very reason, that a court of equity is bound to form its decrees upon general rules; for this measure regards the whole society by preventing arbitrary proceedings.

      It is commonly observed, that equitable rights are less steady and permanent than those of common law: the reason will appear from what follows. A right is permanent or fluctuating according to the circumstances upon which it is founded. The circumstances that found a right at common law, being always few and weighty, are not variable: a bond of borrowed money, for example, must subsist till it be paid. A claim in equity, on the contrary, seldom arises without a multiplicity <25> of circumstances; which make it less permanent, for if but a single circumstance be withdrawn, the claim is gone. Suppose, for example, that an infeftment of annualrent¹⁵ is assigned to a creditor for his security: the creditor ought to draw his payment out of the interest before touching the capital; which is an equitable rule, because it is favourable to the assignor or cedent,¹⁶ without hurting the assignee. But if the cedent have another creditor who arrests¹⁷ the interest, the equitable rule now mentioned ceases, and gives

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