So it was sung of St. Thomas à Becket:

'Hic est qui regni leges cancellat iniquas,

Et mandata pii principis aequa facit1.'

And Sir Christopher Hatton asserts: 'It is the holy conscience of the Queen that is in some sort committed to the Chancellor'

On this foundation was built up that vast and complex theory of Trusts which is peculiar to the law of England, and that system of interference by means of Injunctions' by which the process of the Common-Law Courts was brought to a stand-still, when it seemed likely to work injustice.

The principles by which the Chancellors were guided in the exercise of their powers may best be gathered from their own mouths.

Lord Hardwicke said: "When the Court finds the rules of law right, it will follow them, but then it will likewise go beyond them3.'

Lord Cottenham: 'I think it is the duty of this Court to adapt its practice and course of proceeding to the existing state of society, and not, by too strict an adherence, to decline to administer justice, and to enforce rights for which there is no other remedy. This has always been the principle of this Court, though not at all times sufficiently attended to1.'

It is not surprising that claims to a jurisdiction thus elastic should have given occasion to some criticism. Equity,' said Selden, is a roguish thing. For law we have a measure, we know what to trust to: equity is according to the conscience of him that 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, a Chancellor's foot. What an uncertain measure would this be! One Chancellor has a long

1 Panegyric by FitzStephens, Spence, i. p. 335.

Spence, p. 414. Cf. the general conscience of the realm, which is Chancery.' Fenner J., cited in Bacon's Reading on Uses, Works, vii. p. 401. › Paget v. Gee, Amb. App. p. 810.

4 Walworth v. Holt, 4 My. and Cr. 635.

CHAP. V.

CHAP. V. foot, another a short foot, a third an indifferent foot; 'tis the same thing in the Chancellor's conscience1.'

To this charge Lord Eldon replied in a judgment which traces the lines on which his own administration of equity proceeded: The doctrines of this Court ought to be as well settled and made as uniform, almost, as those of the Common Law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this Court varies like the Chancellor's foot?.'

The latest authoritative exposition of the principles by which the court is guided approximates more nearly to the views of Lord Cottenham. Speaking of 'the modern rules of equity,' the Master of the Rolls (Jessel) said in a recent case: I intentionally say modern rules, because it must not be forgotten that the rules of Courts of Equity are not like the rules of the Common Law, supposed to be established from time immemorial. It is perfectly well known that they have been established from time to time-altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still, they were invented. Take such things as these the separate use of a married woman, the restraint on alienation, the modern rule against perpetuities, and the rules of equitable waste. We can name the Chancellors who first invented them, and state the date. when they were first introduced into Equity jurisprudence; and, therefore, in cases of this kind the older precedents in Equity are of very little value. The doctrines are

1 Table Talk, tit. 'Equity.'

2 Gee v. Pritchard, 2 Swanst. 414; cf. Davis v. Duke of Marlborough ib. 152; Grierson v. Eyre, 9 Vesey, 347.

progressive, refined, and improved; and if we want to know what the rules of Equity are we must look, of course, rather to the more modern than the more ancient cases1.'

As Sir Henry Maine points out, it was greatly owing to Lord Eldon himself, during his long reign in the Court of Chancery, that equity became a body of rules scarcely more elastic than the Common Law. A similar stage was reached in the history of Roman equity when the edicts of the Praetors were consolidated by Salvius Iulianus in the time of the Emperor Hadrian2. The subsequent history of both systems is also not dissimilar. The work of the Praetors was finally adopted into the body of the law by the legislation of Justinian, as were the doctrines of the Chancellors into the law of England by the Judicature Act of 1873. In either case equity ceased to exist as independent system, but bequeathed its principles to the system into which it was absorbed.

an

CHAP. V.

tion.

VI. Legislation, whether by the supreme power, or by sub- Legislaordinate authorities permitted to exercise the function, tends with advancing civilisation to become the nearly exclusive source of new law3. It must be remarked that the making of general orders by our judges, or of bye-laws by a railway company under its Act, is as true legislation as is carried on by the Crown and three estates of the realm in Parliament.

and 'un

In legislation, both the contents of the rule are devised, 'Written' and legal force is given to it, by simultaneous acts of written' the sovereign power which produce written law.' All the other law sources produce what is called 'unwritten law 4,' to

1 Re Hallett's Estate, L. R. 13 Ch. Div. 710. 2 Ancient Law, c. iii. 3 On the relation of legislation to Nature, Custom, and Utility, see Cicero, De Inv. ii. c. 22.

* Cf. Hale, Hist. C. L., p. 55; Blackstone, Comm. i. p. 63; Austin, Jurisprudence, i. p. 195. The Roman writers, on the other hand, give to these terms a merely accidental and literal meaning. Their 'ius scriptum' is that which is committed to writing, by whomsoever, at the time of its origin.

law.

CHAP. V. which the sovereign authority gives its whole legal force, but not its contents, which are derived from popular tendency, professional discussion, judicial ingenuity, or otherwise, as the case may be. Rules thus developed obtain the force of law by complying with the standards which the State exacts from such rules before it gives them binding force. Having so complied, these rules are laws, even before the fact that they are so has been attested by a Tribunal.

The State has in general two, and only two, articulate organs for law-making purposes-the Legislature and the Tribunals. The first organ makes new law, the second attests and confirms old law, though under cover of so doing it introduces many new principles.

CHAPTER VI.

THE OBJECT OF LAW.

THE most obvious characteristic of Law is that it is coercive. Law as re'It was added because of transgressions':

'Iura inventa metu iniusti fateare necesse est 1.'

'Law was brought into the world,' says Hobbes, 'for nothing else, but to limit the naturall liberty of particular men, in such manner, as they might not hurt, but assist one another, and joyn together against a common enemy 2. Even when it operates in favour of the legitimate action of individuals, it does so by restraining any interference with such action. It is accordingly defined by Kant as 'the totality of the conditions under which the free-will of one man can be united with the free-will of another, in accordance with a general law of freedom 3;' and by Savigny, as 'the rule which determines the invisible limit within which the existence and activity of each individual may obtain secure and free play 4' Both of these high authorities make the function of Law to

3

1 Hor. Sat. i. 3. III.

2 Leviathan, p. 138. Cf. Factae sunt autem leges ut earum metu humana coerceatur audacia, &c.' Decretum, Pars i, Dist. i, c. I.

straining.