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In it, he argued that as societies progressed, benevolence became “a matter of conscience in a thousand instances, formerly disregarded.”14 This was something to which a court of common law, which dealt with the ordinary duties of justice, was blind. However, a court of equity was able to recognize this development, and to intervene in “remarkable cases” when it perceived from the circumstances that the duty was “palpable.” The court of equity thus worked to help convert the duty of benevolence which had refined over time into a duty of justice. It “commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for at common law.”15 Over time, as case law developed, judges in equity became more acute at making distinctions and developed these duties in a more systematic way. Once a rule in equity had become fully established in practice, it became part of the fixed rules of common law. This meant that the borderline between common law and equity was flexible: the task of a court of equity was to recognize, refine, and incorporate new rules recognized by the moral sense.
The Nature of Equity
The Principles of Equity was the fullest elaboration of Kames’s theory of legal development. Yet it was not really a book of legal philosophy, but a practical work, aimed at an informed legal audience. Although a book primarily about Scottish law, it was written for a legal audience throughout Great Britain. In the preface to the Historical Law-Tracts, he stated that it was unfortunate that the different parts of the kingdom were ruled by different laws. “A regular institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations, would be a valuable present to the public,” he noted, “because it would make the study of both laws a task easy and agreeable.”16 He added that one man could not do it alone, but that such a work would both help
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bring about a more effective union and improve Scots law. The Principles of Equity was in many ways his contribution to this project, for in it he aimed to treat one aspect of the law and set out a general treatise which drew on the case law of both countries.
The very project of writing a treatise on equity which would address legal audiences on both sides of the border was highly ambitious, since it raised questions about what was meant by equity. The classical definition was to be found in Aristotle’s Nicomachean Ethics,17 according to which it was sometimes necessary for the rules of law to be adapted or modified in particular cases where a strict adherence to a rule would lead to injustice. Yet neither English nor Scots lawyers argued that equity could be used simply to set aside unjust laws. In the words of Kames’s contemporary Lord Bankton, the Court of Session had no equitable power to give relief “where the prescription of the law is clear, and yet happens to fall very hard in any particular case.”18 In such cases, it was for the legislature to intervene.
English writers generally saw equity in jurisdictional terms. It was associated with the Court of Chancery,19 which had an equitable jurisdiction wholly denied to courts of common law. Although there had been a famous clash between the courts of common law and the Chancery in 1616,20 writers on equity accepted Christopher St. German’s sixteenth-century view that the Lord Chancellor’s jurisdiction in equity did not stand in opposition to the common law and that his conscience should be guided by the law. The role of the Chancery was to provide a remedy where the common law courts could not do so, due to the nature of their procedure. In England, the procedure used in the common law courts was wholly
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different from that used in the Chancery. Common law procedure was an adversarial one, in which parties set out their disputes in pretrial pleadings which refined the matter to a single point. A jury would then find for one party or the other on the question put to them and award damages. By contrast, the procedure used in the Chancery was more inquisitorial. Cases were commenced with a bill explaining the plaintiff’s claim and demanding an answer from the defendant. It was this procedure which gave the court its jurisdiction over matters of trust, fraud, and confidence. For the Chancery’s procedure allowed it to probe the consciences—or knowledge—of the parties in a way not possible at common law. It also offered a more flexible and discretionary set of remedies. By the eighteenth century, the equitable jurisdiction of the Court of Chancery had become increasingly settled, with the court following rules and precedents which had created a body of doctrine over time.
By contrast, the Scottish Court of Session had both a “common law” and an “equitable” jurisdiction. Since this court used an inquisitorial procedure taken from the Romano-Canonical tradition, there was no need for a separate court to explore the parties’ consciences and administer equity. At the same time, in Scotland, only the Court of Session had a jurisdiction over equity: inferior courts were limited to matters of common law. What, then, was this “equity” which the highest court applied? Scottish writers spoke of it as “the nobile officium of the judges,” a power which was “inherent in the supreme judicatory of every state.”21 According to John Erskine, this power allowed the court “to proceed by the rules of conscience, in abating the rigour of the law, and in giving aid, in the actions brought before them, to those who can have no remedy in a court of law.” The notion of the nobile officium derived from civilian teaching dating back to Bartolus of Sassoferrato (1313–57), who distinguished between the “mercenary office” (officium mercenarium) of a judge, by which was meant his ordinary power, and his “noble office” (officium nobile), which connoted his extraordinary power. When exercising the former power, the judge strictly followed the forms of the law.
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When exercising the latter, he acted on his own initiative and by his own authority.22
In the late seventeenth century, Sir George Mackenzie associated this power with “Arbitrary Actions wherein the Judge is tied to no particular Law.” It operated “in opposition to that officium ordinarium & mercenarium; wherein he is obliged to follow the will of the Contracters precisely, & hoc officium mercenarium Judex nunquam impertit nisi rogatus.”23 This discretionary power allowed the court to provide remedies which parties could not demand of right, but where the court’s intervention was needed to prevent injustice. For instance, it was used by the Court of Session to allow creditors to attach a debtor’s property to secure a debt not yet due, if the creditor was in danger of losing his money by the threatened flight of the debtor. It also allowed the court to set aside fixed procedural rules which operated at common law.24 In the seventeenth century, the nobile officium was associated with the court’s relaxation of its rules of procedure which required parties to obtain a decision on points of law raised by the alleged facts, before going to proof on those facts. In place of this procedure, the court used its discretion to allow mixed questions of fact and law to proceed, so that the court would pronounce the law subsequently on the basis of facts which had emerged in further investigation. This procedure allowed the court in effect to adapt the law to the particular circumstances of individual cases.25
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The court also had the power by its nobile officium to introduce new rules to overcome imperfections in the law. There was some debate over how far this extended. Lord Bankton illustrated the power by referring to “a memorable instance” in 1725 when the Court of Session made an act of sederunt26 to order the brewers of Edinburgh, who had entered a resolution to give up their trade, to give a security that they would continue to brew beer, on pain of imprisonment.27 Some critics found this legislative power of the court to be alarming. James Boswell wrote a Letter to the People of Scotland in 1785, in which he described the nobile officium of the court as an “undefined arbitrary jurisdiction.”28 He referred his readers to Gilbert Stuart, who had said that through its exercise, “the judicial powers usurp upon the legislative.” “It is in a wild hostility with our constitution,” Stuart added. “It is a Turkish jurisdiction in a country